VIDEO STORY : Bullied workers shattered; Workplace bullying costs Australian businesses an estimated $36 billion a year

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Bullying in the workplace is something that's rarely discussed, but it should be, as those whose lives it affects can be shattered forever.

Workplace bullying costs Australian businesses an estimated $36 billion a year.
In Victoria, the recently passed Brodie's Law has made bullying at work a criminal offence, but in every other state it's still not against the law.

Karen Carr lives a hair’s breadth from becoming yet another bullying statistic. She barely hangs on each day, having suffered months of ridicule, abuse and sabotage in a job she loved.
“It has reduced me to a shadow of my former self," Carr said.

WATCH STORY here - Video Link 

One in five Australian workers is bullied at work, with almost half of all victims simply leaving their jobs. It’s an epidemic that’s getting worse, and no company or industry is immune.
"This is an insidious disease that's of epidemic proportions," Carr said.
“Bullying is premeditated. It is intentional, repeated assault."

Carr still thinks of suicide daily. She is unable to return to work of any kind, and a successful career in newspapers has been destroyed by a pack of frenzied workmates. Despite this, she is the one punished, and the bullies have not even been reprimanded. “I am viewed as the criminal in this, and I am made to feel like that. Whereas the bullies are all living life just as they were seven years ago."

Nine years of constant harassment and bullying has left gentle giant Rob a quivering wreck, after he suffered a complete mental breakdown from taunts and abuse. Now his wife Tina is terrified to leave him alone, even for a minute. "It came to the point where Tina had to full-on wrestle me to the ground to get a knife off of me, because I was going to slit my throat," said Rob.
Workplace bullying, says Rob, destroyed his life.

“It was a day-to-day fight just to keep him from hurting himself, from killing himself, just to keep him alive,” Tina said. Rob now survives on a small pharmacy of pills and potions to get through every day. “People don't realise how serious bullying can be, and what it can do. People just think it's names in a schoolyard, but it is so much more than that," he explained.

Telstra linesman Levin Madeley is another bullying victim hounded out of his work by unrealistic pressures, crazy deadlines and workplace bullying. “I ended up having to go to the doctor before I did something really stupid," Madeley said. His wife Jenny knew something was wrong, but has no idea just how wrong or serious it was. “You think you know somebody really well, and Levin is my soul mate, so to not know that he was that close (to suicide), it hurts a lot," Jenny said.

Sadly some do take that terrible, final step. Nineteen-year-old Brodie Panlock jumped from a multi-story car park after enduring more than a year of workmates treating her like dirt at a Melbourne cafe. She was spat on, called fat and ugly, and once had fish sauce poured all over her. Under the tougher laws in Victoria, three so-called ‘workmates’ and the cafe owner were fined more than $300,000 after the all pleaded guilty.

Victoria is the only state to make bullying a crime, but is that enough?

Doctor Carlo Caponechia is doing a nation-wide study of workplace bullying and its terrible costs. He has been shocked by what he's uncovered. “One of the negatives is that it's not preventative. It takes for something bad to happen, like suicide or death or someone feeling very threatened and humiliated, and really negatively affected by this," Dr Caponechia said. “People are being hurt and they shouldn't be hurt in the course of their work."

But how do you fix a problem where the bulk of victims are too frightened to come forward?
According to Dr Caponechia “You have to make it safe for people to report, and you have to make sure people know how to report."

Carr is still waiting for her case to reach court. She’s hanging on, day by day, and praying for justice, but unable to banish her demons. “I will never forget. How can you forget an event that basically takes your life away as you knew it?"

Contact details

• Workplace bullying information - www.reachout.com

Readers seeking support and information about suicide prevention can contact Lifeline on 13 11 14 or SANE Helpline on 1800 18 SANE (7263)

Whistleblowing on Bullying - Time for Management to take ownership and deal with the Bullies

There is a conspiracy of silence when it comes to workplace bullying. In the many thousands of words recently written about bullying at work in the local press the conspiracy has been maintained.

A conspiracy of silence occurs when everyone knows that bad behaviour is occurring but there is a tacit decision not to talk about it and certainly not to do anything. It was first used to describe incest in families and, more recently, other forms of abuse. People don’t do anything because they don’t want to rock the boat, to avoid conflict, and because it is just too hard. Sadly, by not speaking up or doing anything the observers validate the perpetrator and invalidate the victim.

As I have often seen in clinical practice, the effect of these conspiracies on the victims is monstrous. The victim feels as if he or she is somehow at fault, they are confused, and feel alone and unsupported. Most importantly they come to feel powerless and it is this that results in anxiety and depression, the most common effects of being bullied.

In all that is written about bullying at work there are two major conspiracies of silence that result in enormous pain and suffering for victims. It also seems that workmates who see the bullying can also be badly affected resulting in significant symptoms on their part too.

The first gaping silence is that senior managers in organisations prefer not to do anything about bullies. This conspiracy of silence occurs despite the fact that bullying is against the law and CEOs and boards of directors are in fact culpable by not acting. It is interesting to watch an organisation move a victim of bullying to another branch or even another job, and leave the bully in place: even after admitting openly that the bullying has occurred. Sometimes, it is easier to call a case of bullying a personality conflict and call in a mediator. The damage these behaviours do to the victim is enormous.

It’s also common to blame the victim. This is easy because the bullied worker has repeatedly made complaints, as instructed by the legislation and the bullying literature that is lying on the coffee table in the CEO’s waiting area. The victim, who has become increasingly distressed over time, can be simplistically labelled as unstable or over-sensitive: a trouble maker. Let’s not forget too that bullies often pick on already vulnerable people who might have a reputation already for being over-sensitive.

There have been some notorious bullies in organisations in and around Lismore that have been allowed to get away with bullying behaviour time and time again: I have seem many of their victims at the clinic. Many of these bullies get promoted. There are also large numbers of senior managers that know that their staff are being bullied but do nothing. Under the legislation they are just as culpable as the bully and their organisation can be fined many thousands of dollars. But they still engage in the conspiracy and more often than not put the fox in charge of the chook shed.

The preferred personality profile of a successful manager (or one on the way up) appears to be someone who is aggressive, dominant, single-minded, achievement-oriented, and task-focused. Throw in a little pinch of narcissism, low empathy for others and an unsatisfied need for power and this is a nasty recipe for bullying behaviour. These are not easy people to deal with which makes it so much easier to turn a blind eye. Bullies often appear so good at their job and they create the right relationships with the right people to protect themselves.

And it happens every day in organisations in which we all work. In a recent case a colleague of mine was told by the human resource manager of her organisation that it would be better to let a case of bullying drop because it was against a very senior manager. The reason being that the consequences would not be worth it in the end.

The other conspiracy involves an unholy alliance between the organisation and the insurance company. Despite the pretty advertisements, insurance companies want to avoid liability. To do this they will find any excuse to blame the victim rather than make the workplace deal with the problem. Everyone’s a winner: the insurance company doesn’t have to pay out and the organisation’s premiums are protected.

The main way this is done is to find a pre-existing condition in the victim such as a history of previous abuse, anxiety, depression, previous bullying or any other negative behaviour. This is then used as a means of blaming the victim. This is easy to do by running an unbalanced investigation and being highly selective with ‘the evidence’. For someone who has genuinely been bullied at work this outcome is extremely damaging.

It is time for the conspiracies of silence to be broken. Those with the power to act need to make the hard decision and deal with the perpetrator rather than leaving it up to the victim, who is already disempowered.

Dr Stewart Hase is an Adjunct Fellow with Southern Cross University and a consultant psychologist.

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Remembering The Victims of Workplace Bullying - Stuart McGregor's story

Bullying: Stuart McGregor's story

VIDEO INTERVIEW with Stuarts Mother

Alannah McGregor tells the story of how her son fell victim to workplace bullying so severe he eventually committed suicide.

IT'S been seven years, but the way Alannah McGregor sounds when she talks about two of her three children, it could have happened yesterday. Grief sounds like this; tight-chested but calm, with an unbearable sadness seeping through the words.

They were born four years apart, but Stuart, 20, and Angela McGregor, 16, were close. She was the youngest and he was the oldest - they did things together. She was his closest confidant. She defended him fiercely. And they died a month apart.

Workplace bullying did this, says Alannah and her husband, Ray McGregor.

Alannah McGregor and, inset, her children Stuart and Angela.

The case of 19-year-old Victorian woman Brodie Panlock, who took her own life after sustained bullying at work, has recently galvanised attention around this ugly but under-reported reality in our working lives.

But before Brodie, there was Stuart.

Stuart had always wanted to be a chef. He was three months away from turning 17 when he scored a highly sought-after apprenticeship as a chef in a kitchen in Bendigo, beating 70 others to the job.

But what should have been a dream job unaccountably turned ugly. Name-calling, verbal abuse and innuendo about his sexuality were common.

His apprentice paperwork was ignored and he was ridiculed. Once he was given a 10-kilogram bag of peas and told to count them. Another time, when Stuart asked about a soup recipe, the bully stood over him, berating him and telling him to ring the chief executive of the company to ask for it.

The main perpetrator was the manager of the kitchen, but following his lead, others would join in.

One day Stuart rang Alannah at lunch-time, excited. Word was going around that he was in line for an employee award, he told her proudly. But he returned from work that evening, furious. Workmates had broken into his car and stolen the knob off his gearstick, wrapped it and ''presented'' it to him as his ''award'' in front of everyone. Stuart had felt humiliated and belittled.

Eventually, Stuart admitted to his parents he hated work and that one person in particular was ''picking on him''. He did not go into details.

Without realising the seriousness of the situation, Alannah says her and her husband's initial reaction was that ''it's not right, but you're an apprentice, you're going to have to put up with it for a while''. It is advice she regrets deeply. Stuart shut down and would not talk about it again.

Later, Alannah heard another deeply alarming story.

Just before the end of Stuart's three-month probation period, he was invited on a camping trip. Initially excited, he then went quiet and made excuses not to go. Much later, it came out that the man who had been bullying Stuart had told him that he ''would have blood up your arse and grass on your knees'' if he went on the trip. Stuart was badly frightened by this.

Eventually the bullying culture came to light after another apprentice complained. Stuart initially denied it; perhaps he still thought he could manage the situation, or probably he was concerned about losing his job, a concern that proved well-founded.

The McGregors say there was an initial internal investigation, which proved unsatisfactory to them. They approached the Equal Opportunity Commission and WorkCover stepped in.

While the allegations were being investigated, Stuart found it impossible to work directly under his alleged perpetrator. Put on WorkCover payments, he never returned to full-time work in his chosen profession again.

Alannah says she was told the bully faced disciplinary action, but remained there while WorkCover concluded their investigations.

In the meantime, Stuart's mental health deteriorated sharply. His chronic depression worsened and as the investigation progressed, he began self-harming. Stuart also began smoking marijuana heavily, negatively affecting the family.

Workcover finished its investigation. Stuart's claims were substantiated, Alannah says, but inspectors were unsure whether there was enough evidence to take to court. But they would make their decision soon.

Meanwhile, unknown to those around her, a quiet despair had entered the life of Angela, the McGregors' youngest daughter. (The McGregors have a second daughter, Stacey, who is now 25.)

Alannah and Ray did not realise it but Stuart had confided in Angela the most distressing details of his bullying, which the family have asked The Age not to publish.

Angela was a lively, ''loud and funny'' girl who was very popular. ''Very grown up for her age, but I guess underneath she was probably depressed and I just realised that myself,'' Alannah says.

Fiercely loyal, Angela regularly defended her increasingly unwell brother against the cruel gibes at school and the local sporting club. ''People just make fun of mental illness,'' Alannah says.

But Angela, too, had been the subject of schoolyard bullying after speaking out over an incident she witnessed in the schoolyard. From her brother's experience, Angela believed no one would help her.

Alannah feels this, on top of her sensitive daughter's great distress at her brother's treatment and the belief certain details of the bullying would be aired against Stuart's wishes, culminated in a terrible decision to take her own life. She was 16. A month later, Stuart was also dead.

''He fought so hard to stay alive,'' Alannah says. ''But he probably blamed himself for his sister's death. I imagine he couldn't live with himself after that.''

IT MAY be some small consolation that in its own modest way, Stuart's case helped contribute to legislative changes that would have an impact on another case involving the death of a vulnerable young worker - Brodie Panlock.

The circumstances are now widely known: how 19-year-old Brodie was subjected to an ''unbearable level of humiliation'' in her work at Cafe Vamp in Hawthorn that led to her suicide in 2006. Last month, Nicholas Smallwood, 26, Rhys MacAlpine, 28, and Gabriel Toomey, 23, were convicted and fined a total of $85,000, while cafe owner Marc Da Cruz, 43, and his company Map Foundation were convicted and fined a total of $250,000 on charges that included failing to provide and maintain a safe working environment. The cafe has since been sold to new owners.

Following an independent review conducted by then-barrister and now Court of Appeal president Justice Chris Maxwell in 2004, the Occupational Health and Safety Act was amended to recognise the importance of psychological health at work.

This change was considered an important tool in helping to more effectively prosecute bullying at work, a WorkSafe spokesman told The Age.

Alannah understands that Stuart's story made its way into the extensive consultation at the time.

One imagines that when something as cataclysmic as a death - whether it is a suicide or an accident - occurs in the workplace, an employer's first action would be to sit down with the bereaved family and talk. In fact the opposite can be true, according to a report published last July which sought to investigate the approaches used to deal with workplace deaths. In a consultation paper prepared for Uniting Care Victoria's Creative Ministries Network (CMN) and funded by the Legal Services Board of Victoria, researcher Derek Brookes found concerns over legal liability meant some employers refused to meet bereaved families.

In many cases, grieving families would be immensely comforted by an apology. Yet the adversarial legal system, concerned with attributing blame and apportioning damages, struggles to accommodate such action.

This is where a modest project run by CMN may just blossom into a world-first. Restorative justice, a term most commonly linked with juvenile offenders, involves victims and perpetrators meeting to discuss the impact of the offenders' actions. It is not linked to legal action. As part of its grief counselling service, CMN had began to investigate the viability of using restorative justice principles to deal with work-related deaths, both accidental and by suicide. Last year, the service received $50,000 from the Legal Services Board of Victoria to establish a model for how restorative justice might fit in with Victoria's legal framework. CMN is now preparing to begin a test case and, if it is successful, will approach the Victorian government to fund a three-year pilot program, the first in the world.

CMN director the Reverend John Bottomley says that while legal remedies continue to be appropriate, those seeking ''healing and restoration'' should also be accommodated.

''Part of the restoration may be the reputation of the person who died, so they are not remembered only in terms of a traumatic death but what they achieved in their life,'' Bottomley says.

He concedes the main issue remains liability. Would an expression of sorrow affect the rights of a family to take legal action? Or the rights of the company? When should an apology be given? Could it be taken into account during a court case?

But Bottomley believes such principles can work with courts, WorkSafe and the coroner. Bottomley nominates the increasing use by WorkSafe of enforceable undertakings, where companies are directed to put money into a project identified by the family, as an example of ''restorative'' practices that already exist.

(WorkSafe says it supports the concept of restorative justice, as well as the wider use of victim impact statements as recently announced by Attorney-General Rob Hulls.)

''Restorative justice gives both parties an opportunity for the parties to actually deal with the deaths,'' Bottomley says. ''What the courts currently deal with now is a breach of the Occupational Health and Safety Act.''

IN THE aftermath of her children's deaths, Alannah McGregor made a courageous decision. She would puncture the terrible stigma that continues to exist around suicide and talk about what had happened. She spoke in local forums around Bendigo, but it was a chance conversation with trucking magnate Lindsay Fox at a company function with her husband, Ray, that helped her tell her story more widely.

Fox's family had also been affected by suicide, with the death of his son Michael in 1991. He threw his weight behind a project to educate people on the impact of bullying.

The result was Stuart's Story, a 10-minute video made in 2004 with the financial support of Linfox, distributed first in the company's workplaces and then more widely.

Alannah makes a special point of urging people who witness bullying to speak up. She also believes a restorative justice approach may have been helpful for Stuart, at least in the early days.

Stuart's father, Ray, has previously chosen not to speak publicly about the deaths of two of his children. But in an open letter provided to The Age he offers his deepest sympathy to the Panlocks, writing that he shares with Brodie's father, Damien Panlock, the agony of not being able protect his children.

''I would like to see that those who have died will not have died in vain, but leave a legacy that dignifies them by working towards changing the culture in our workplaces,'' Ray writes.

''Relying on the publicity of court cases will not make change as many believe it will. Some believe it will never happen in their workplace or that the snide remarks or behaviour is not really bullying and will not bring about the tragedy of suicide due to workplace bullying.

''It was very hard to get to that point in my life, but each day I work at it and hope that by speaking about it that there is hope for the future.''

For help or information visit beyondblue.org.au, call Suicide Helpline Victoria on 1300 651 251, or Lifeline on 131 114.

For more information on workplace bullying, go to worksafe.vic.gov.au

For work-related grief support, visit Uniting Care Victoria's Creative Ministries Network at cmn.unitingcare.org.au or phone 9827 8322.

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LEGAL - Discrimination and Victimisation soon to be "adverse action"

Key Points:

New adverse action provisions give rise to the potential for alternative claims beyond those traditionally found under the anti-discrimination jurisdiction.

From 1 July 2009, national system employees and employers will have the ability to bring adverse action claims under the Fair Work Act 2009, including in respect of claims of discrimination and victimisation in employment. While it has always been unlawful to discriminate in employment under the Workplace Relations Act 1996, traditionally such claims have tended to be brought under the relevant State or Federal anti-discrimination legislation where specific processes and remedies, underpinned by separate tribunals (or commissions) exist.

The extent to which employees will make use of the new expanded "adverse action rights" and bring claims under the Act instead of the relevant State anti-discrimination Tribunal remains to be seen. Employers however, need to be aware of the concept of "workplace rights" and what can constitute adverse action under the Act.

Under the new general protection provisions in the Act, employees and employers can bring an "adverse action" claim where a workplace right has been breached or is threatened to be breached. A "workplace right" is defined in the Act to encompass:

• an entitlement, benefit, or responsibility under a workplace law, workplace instrument or an order made by an industrial body (such as the Australian Industrial Relations Commission or Fair Work Australia (FWA));
• initiation or participation in, a process or proceedings under a workplace law or workplace instrument (including, but not limited to, a conference before FWA, court proceedings, protected industrial action, appointing a bargaining agent, making a request for flexible working arrangements or dispute settlement); or
• making a complaint or inquiry to a body having capacity to seek compliance with a workplace law or workplace instrument. This is broad in its application and extends to the ability to make a complaint to the person's employer, FWA, or a union.

The circumstances in which an adverse action can be said to be taken against another person are very broad, and can include dismissing an employee, injuring or altering the position of an employee to his/her prejudice, or discriminating between the employee and other employees.

The anti-discrimination claim

A recent case in the Queensland jurisdiction can illustrate how a set of circumstances ordinarily giving rise to a victimisation claim under anti-discrimination laws, might apply as an alternative adverse action claim for a breach of a "workplace right" under the new legislation.

In the case of VN v MP, KP, K t/as P, and DS [2009] QADT 1 (13 January 2009), the complainant made a complaint to the Queensland Anti-Discrimination Tribunal after her employment was terminated because of a sexual harassment complaint made against a floor coverings company and its directors.

The complainant, a female salesperson, had complained that she had been sexually harassed by each of the two directors of the company (a married male and female) and by a male floor covering installer while employed by the company.

The male director of the company terminated the salesperson in November 2004, believing that he had a right to do so because she had made a sexual harassment claim against him.

In addition to the claim for sexual harassment, the complainant alleged victimisation for a number of reasons including the termination of her employment. She further alleged that the company was vicariously liable as the acts of sexual harassment and victimisation had occurred at work.

The complainant claimed damages and compensation arguing that she had suffered emotional trauma, weight loss, difficulties in personal relationships and insomnia as a result of the harassment. She also claimed lost wages, and money for use of the company car which she claimed formed part of her remuneration package.

Having weighed up the evidence, the Tribunal ultimately held that the complainant had not been sexually harassed by any of the respondents, and dismissed that aspect of the complaint. Further, all of the complainant's allegations of victimisation, other than for the termination of her employment for bringing the sexual harassment claim, were dismissed.

However, the Tribunal found that the victimisation charge was made out against the male director, who was found to have terminated the complainant's employment because she had made allegations of sexual harassment against him.

In relation to victimisation, the Tribunal stated:

"it is not necessary for the complainant to establish that the matter was the sole reason for the detrimental conduct, rather, the complainant must establish that the matters were a substantial reason for the detrimental conduct".

In this case, although the Tribunal acknowledged that there had previously been warnings given to the complainant regarding her dress, excessive use of work telephone, inappropriate language and divulging confidential information, the primary reason for the termination of the complainant's employment was her allegation of sexual harassment. Termination of employment under the Queensland Anti-Discrimination Act clearly satisfied the "detriment" requirement of the legislation, as the complainant suffered loss as a result of the loss of her job.

The company (found to be vicariously liable) and the male director were ordered to pay the complainant a total of $200 in damages for victimisation, while both parties were ordered to pay $1,040.00 in lost wages.

The alternative claim

If the facts of this case were to be presented under the auspices of the Act, notwithstanding the fact that the allegations of sexual harassment may have ultimately be found to have been erroneous, it is conceivable that the complainant would have grounds to commence an adverse action claim under the Act for the detriment she suffered by making the sexual harassment complaint.

The circumstances of the case give rise to a relevant "workplace right" (by reference to the an entitlement or obligation under anti-discrimination law) and a detriment has taken place (that is, termination of the employment).

Accepting an alternative claim available, such a complainant would have access to remedies that are broader in scope than that traditionally available under anti-discrimination laws.

Under the new laws, where an adverse action claim is made, it will be generally be dealt with at first instance by a Fair Work conference. If the conference does not resolve the dispute then the employee may proceed to run a case either in the Federal Magistrates Court or Federal Court. It is important to note that an application must be made within 60 days of the dismissal, although FWA will have discretion to accept an application lodged out of time.

Yet, it is not only in instances of termination of employment that an adverse action can be made. An employee can also seek an interim injunction from the court to restrain an employer from dismissing the employee, either where a threat is made, or it appears likely that termination of employment is imminent.

Where termination of employment has resulted, the court may make any orders it considers appropriate to remedy the situation. This means, that in addition to orders for compensation (the traditional remedy for anti-discrimination tribunals), a court may order injunctions and reinstatement orders.

Conclusion

It is important that employers familiarise themselves with these new adverse action provisions and the potential for alternative claims beyond those traditionally found under the anti-discrimination jurisdiction. Organisations should review their policies and procedures to ensure that they can adequately identify issues giving rise to adverse action. In the case of those with responsibilities for grievance handling (such as human resources and contact officers) retraining may need to occur so that areas of risk can be identified and appropriately managed.

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LEGAL - Rostering changes lands hospital with Victimisation claim

Key Points:

When an employee makes a complaint, employers must be careful in subsequent dealings with the employee to ensure that they are not treated detrimentally as a result of the complaint.

In Correy v St Josephs Hospital Limited [2009] NSWADT 40, the Administrative Decisions Tribunal considered whether a nurse's rostering arrangements constituted victimisation under section 50 of the Anti-Discrimination Act 1997 (NSW). MsCorrey had worked as a nurse in the Palliative Care Unit (PCU) of StJosephs Hospital for nine years before going on maternity leave in 2004.

When Ms Correy was due to return, she requested that she be rostered back in the PCU, but with reduced hours due to her carer's responsibilities. Instead the Hospital rostered her to work nine out of ten shifts in a different unit, the Aged Care Psychiatric Unit (ACPU), a "locked ward" to which Ms Correy raised an objection. Ms Correy had previously told the Hospital that she had been involved in a domestic violence incident, and found working in "locked wards" to be distressing and that it may cause her further psychological injury.

The Hospital argued that it was not obliged to return MsCorrey to any one unit to which she was assigned before going on maternity leave. Things came to a head on 28 July 2005 when legal representatives for Ms Correy wrote to the Hospital stating that its refusal to roster MsCorrey in her original role in the PCU had completely destroyed the relationship of trust and confidence between Ms Correy and the Hospital, and that Ms Correy considered that the Hospital had effectively terminated the employment.

At first instance, the Tribunal found that such action by the Hospital constituted discrimination and victimisation of Ms Correy for the purposes of the Act. However, in the decision of St Josephs Hospital Limited v Correy (EOD) [2008] NSW ADTAP 4, the Appeal Panel overturned the decision with regard to the discrimination finding and found that the Hospital had not engaged in discriminatory conduct. However, the Appeal Panel remitted to the Tribunal the question of whether the Hospital's conduct in the rostering arrangements constituted "victimisation".

Issue

Section 50 of the Act prohibits the victimisation of persons who complain that they have been subject to unlawful discrimination. Section 50 also prohibits the alleged discriminator to subject a person to a detriment if he or she knows or suspects that person intends to make such a complaint. A person who complains of victimisation must prove that it is more likely than not that a causal connection exists between a detriment that he or she has suffered and the conduct, such as a complaint, which is said to have triggered the retaliatory or punitive response by the alleged discriminator.

The Appeal Panel affirmed that Ms Correy had been subjected to a detriment by being rostered to work in the ACPU, and also that the "trigger" for the victimisation had been established, namely the allegations of discrimination made by Ms Correy to the Hospital's managers. The issue before the Tribunal was whether the necessary causal connection existed between Ms Correy's allegations of discrimination and the detriment she suffered.

Decision

The Tribunal noted that Ms Correy's case against the Hospital consisted mostly of circumstantial evidence. There was no direct evidence led that any of the Hospital's decision-makers rostered Ms Correy in the ACPU because she may have persisted in her allegations of discrimination. The Hospital relied on the evidence of the Director of Nursing who provided no explanation for why Ms Correy was rostered to work in ACPU for nine out of ten shifts in the August 2005 roster.

The Tribunal then asked itself, given the lack of evidence led by the Hospital, whether Ms Correy had advanced a circumstantial case that placed an evidentiary, but not legal, onus of proof on the Hospital. The Tribunal, relying on the High Court case of Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200, stated that where the facts and circumstances led by the plaintiff point strongly in one way, the absence of a reasonable alternative hypothesis or explanation by the defendant makes the conclusion for the plaintiff easier to draw with comfortable satisfaction.

The Tribunal found that the rosters were prepared after Ms Correy had made it "abundantly clear" that she had a strong objection to working in the ACPU, and that absent some plausible explanation, which had not been forthcoming from the Hospital, it was difficult to accept that the increase of shifts in the ACPU was "coincidental".

The Tribunal found that the most plausible explanation for the Hospital's rostering of Ms Correy to the ACPU was to "teach her some sort of lesson by forcing her to accept rosters it knew she believed she could not work and from which she had begged to be excused". It also found that the evidence taken as a whole - namely the circumstantial evidence about the rostering of Ms Correy in the ACPU, the unsatisfactory explanation provided by the Hospital for that decision, coupled with the inference that the evidence of the persons who actually prepared the rosters (who were not called) would not have assisted the Hospital - supported a finding that the Hospital had made those rosters because MsCorrey had made complaints of discrimination. The rostering of Ms Correy in the ACPU therefore constituted victimisation under section 50 of the Act.

Relief

In determining whether or not to grant Ms Correy relief under section 108 of the Act, the Tribunal had to consider whether the Hospital's breach of section 50 of the Act "materially contributed" to the loss that MsCorrey had suffered. The loss that Ms Correy had suffered was lost wages because she did not return to work when her maternity leave concluded. The question was, therefore, whether the Hospital's refusal to accede to her request to return to the PCU materially contributed to her not returning to work.

The Tribunal found that by victimising Ms Correy, the Hospital had breached an implied term in her contract of employment, that the employer would comply with the Act insofar as it affected the terms and conditions of employment. The Tribunal found, therefore, that the Hospital had effectively terminated the contract by rostering MsCorrey into a unit which it knew would result in her refusal to work. Accordingly, the Tribunal found that the Hospital's conduct in victimising Ms Correy had materially contributed to her loss, and awarded Ms Correy $23,665 in damages.

Lessons

Employers should be aware that where an employee makes a complaint, care must be taken in subsequent dealings with the employee to ensure that they are not treated detrimentally as a result of the complaint, regardless of whether the complaint is ultimately substantiated or not.

Furthermore where a decision is made that may impact on an employee, the basis of the decision should be well founded, operationally sound and defensible and of course not causally related to the fact of the complaint. In this case, the employer did not have a reasonable explanation as to the basis of the rostering changes and in the absence of one a negative inference was drawn.

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