In brief - Employee not bullied and employer did not breach
duty of care
An employee who experienced an overwhelming workload,
professional and personal pressure, conflict and a strained
relationship with a colleague was found not to have been
Bullying alleged following return to work from maternity
In May 2012, after a 15 day hearing, the Victorian County Court
in Brown v Maurice Blackburn Cashman  VCC 647,
dismissed a claim by a salaried partner of Maurice Blackburn who
alleged that she had been subjected to bullying behaviour by a
co-worker subsequent to her return to work from maternity
Ms Brown had been the head of the family law department at
Maurice Blackburn. Three solicitors reported to her, including a
solicitor she had known socially and had recruited approximately
two years prior, Ms Formica. When she went on maternity leave, Ms
Brown's files were allocated to the three solicitors and
shortly before Ms Brown returned to work, Ms Formica became a
Ms Brown alleged that, upon her return to work, Ms Formica
engaged in bullying by way of email correspondence and in direct
conversations. She asserted that Ms Formica was critical of her
file management and billing practices. On one occasion Ms Brown
alleged that she sought assistance from Ms Formica to prepare for a
court appearance and Ms Formica stated that she was too busy.
Employee's complaint leads to unsuccessful mediation
Ms Brown complained to the firm's managing partner, who
conducted a mediation with Ms Brown and Ms Formica. It was
unsuccessful, the relationship between Ms Brown and Ms Formica
remained strained and Ms Brown ultimately left the firm.
Ms Brown commenced proceedings against Maurice Blackburn,
asserting that she had sustained a psychiatric injury as a result
of the bullying which has prevented her from being able to work as
Did the employer breach its duty of care to the employee?
At issue in the proceedings was whether Maurice Blackburn owed a
duty of care to Ms Brown, whether it was reasonably foreseeable
that she would suffer psychiatric injury in the circumstances and
whether Maurice Blackburn breached its duty of care, causing a
Court rejects employee's bullying claim
The Victorian County Court rejected Ms Brown's contention
that the email exchanges amounted to bullying behaviour, finding
that both women were under significant personal and professional
After an examination of the emails exchanged, the Court
dismissed Ms Brown's claim, finding that she had not been
bullied, that it was not reasonably foreseeable that she might
suffer psychiatric injury as a result of stress upon her return to
work and that Maurice Blackburn did not breach its duty of
Employer found to have responded appropriately to
Maurice Blackburn was found to have acted as a reasonably
prudent employer in the circumstances. It was found that the
managing partner had adequate training and experience to deal with
the bullying complaint and that he responded to it appropriately by
attempting to resolve the issues through mediation.
Employee unsuccessfully appeals court decision
Ms Brown appealed the decision.
On 22 May 2013 in Brown v Maurice Blackburn Cashman  VSCA 122, the
Victorian Court of Appeal affirmed the decision of the Victorian
County Court. It found that Ms Brown had not established that she
had been subjected to bullying and agreed with the court at first
instance that some level of stress and conflict was inevitable in
the circumstances and that at best Ms Formica engaged in a robust
expression of frustration concerning her workload.
It was also found that a duty of care did not arise until Ms
Brown lodged a complaint and that the managing partner's
response to the complaint was reasonable in the circumstances.
Employers should carefully manage workload shifts associated
with maternity leave
Despite the finding that Ms Brown was not bullied upon her
return to work, this decision highlights the need for employers to
ensure that protocols are implemented to manage workflow when a
staff member goes on maternity leave and to ensure that appropriate
resources are allocated to assist a returning staff member to
transition back into the workplace after an absence from work.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
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