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Employee kicks up stink with unusual bullying claim

10 April 2019

David Hingst, a contract administrator in Melbourne brought a case of wrongful dismissal and bullying.

What is unique is that he alleged that one key component of the bullying while working at Construction Engineering was that his supervisor directed flatulence at him.

He claimed damages of A$1.8 million (NZ$1.9m).

The bullying allegations included that his manager, Greg Short, would regularly break wind on him or at him, and Short thought this was funny. Hingst alleged that Short would "lift his bum and fart" on him up to six times a day. Hingst would spray deodorant on Short and called him "Mr Stinky".

On March 29, the Victorian Court of Appeal in Australia released its decision.

Hingst further alleged another manager came into his office and said the coffee Hingst had brewed was "s...". He also claimed that managers would take other employees out for lunch but excluded him, that he was excluded from meetings, and on and on the allegations went.

He claimed that following a lunch that he had been invited to, Short called him an "idiot poofter". He alleged that Short frequently abused him over the phone. Hingst claimed his managers conspired to marginalise him and have his employment terminated.

The employer's case was that Hingst was made redundant following a downturn in construction work due to the global financial crisis. Short said he might have farted once or twice but didn't do this with the intention of harassing Hingst.

Another employee said there were indeed instances where Short had a propensity to walk over to the printer and pass wind.

Hingst claimed that as a result of the alleged bullying he suffered psychiatric injuries and physical injuries - including fibromyalgia and irritable bowel syndrome.

Hingst's case was entirely unsuccessful. The Supreme Court of Victoria found that Short did not bully or harass Hingst, nor did any other employee of the company.

The judge found that Hingst was profoundly hurt by the loss of his employment as his job was of the utmost importance to him.

The judge said Hingst had reacted in an extreme and unreasonable way to the termination of his employment which led him to seek revenge against those who he blamed for his loss. The alleged bullying had not caused the alleged psychiatric harm.

Hingst challenged the decision in the Court of Appeal but was refused leave to appeal. It was also accepted that Hingst's termination was due to a genuine restructure.

This is a sad case that highlights the importance of sensitively handling employees when a decision adversely affecting them is being taken.

Traditionally, consulting with workers and providing employee assistance programme support or counselling is important. This is especially the case in redundancy cases where a person loses their job through no fault of their own.

Full-time workers spend a good third of their lives at work and derive so much of their self-worth from their work. Adverse decisions, especially dismissal, often see a person's sense of worth damaged or even destroyed, in some cases irreparably.

Hingst is typical of such people who struggle on with sometimes pointless litigation for years trying to recover who they once were.

In New Zealand, the most common definition of workplace bullying is "repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety".

It is not always necessary for the perpetrator to have intended to bully someone.

However, bullying has not been conclusively defined by the courts as whether conduct is bullying depends entirely on the facts.

Bullying is a serious issue in many workplaces. But some employees do raise bullying allegations in response to pressure being put on them at work.

In 2018 an employee, Marx, brought a case in the New Zealand Employment Court claiming to have been bullied and unjustifiably dismissed. The judge gained the impression that Marx bandied about allegations of bullying to any actions by her employer which she perceived not to her advantage.

She called all of her manager's efforts "bullying", yet ignored the fact that she herself was completely breaching her obligations to her employer and her manager was entitled to raise this with her.

The Employment Relations Act recognises the imbalance of power between employers and employees. When making decisions that affect someone's employment, the employer should factor in the impact their decision may have and try to mitigate this.

With serious consideration, Hingst's case is really a sad one. It is clear that his employer followed a process compliant with the law, however the impact this had on him has been profound.

His dismissal occurred in the aftermath of the global financial crisis, and nearly a decade later he is still pursuing claims self-represented and that are without merit.

It is a good lesson for us all on the impact of these decisions. A good employer will turn its mind to minimising the impact of an adverse decision, particularly for employees who may struggle emotionally.

Cullen - The Employment Law Firm was one of the first eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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