Workplace bullying: “The plaintiff alleged that Mr Short would regularly ‘lift his bum and fart’ on him or at him and that Mr Short thought this was funny”

Mr David Hingst brought an action in the Victorian Supreme Court against his former employer, Construction Engineering (Aust) Pty Ltd, claiming damages of $1.8 million because, he alleged, he was bullied in the workplace and had, as a result, developed a psychiatric injury (including fibromyalgia and irritable bowel syndrome).

The nub of the allegations in support of Hingst’s claim were that there was a “conspiracy” between two of Mr Hingst’s supervisors and a manager to marginalise Mr Hingst and have his employment terminated. It was also alleged that a number of “discrete or peripheral incidents occurred”, including an incident where a work colleague started farting in a communal office space shared by Mr Hingst.

Labelled “the flatulence incident(s)”, the Court described the incident alleged by Mr Hingst in the following terms:

The plaintiff alleged that, within a week of returning to head office and taking a desk in the communal office space, Mr Short ‘start[ed] farting’. The plaintiff said that he became increasingly unhappy about Mr Short’s flatulence and would protest by saying things like ‘you’re not serious?

On one occasion, the plaintiff said he went down the street and purchased a can of deodorant and came back and sprayed it over Mr Short, at which point the ‘guys all laugh[ed]’. The plaintiff alleged that Mr Short would regularly ‘lift his bum and fart’ on him or at him and that Mr Short thought this was funny. According to the plaintiff, this happened on his first day back at head office, progressing to the point where Mr Short would do it every day. This went on for some time. The plaintiff complained that he found Mr Short’s behaviour insulting. The plaintiff said that, at one point, he refused to get into a lift with Mr Short and, when asked why, called him ‘Mr Stinky’. He said that Mr Short then called him an ‘idiot’.

The plaintiff said that, on another occasion, Mr Short passed wind when they were at the printer and apologised. The plaintiff complained that Mr Short’s behaviour was demeaning. He did not submit, however, that the flatulence was bullying but rather that it was humiliating and disgusting”.

The Court did not accept Mr Hingst’s evidence regarding the frequency of his colleague’s flatulence or that the flatulence was targeted at Mr Hingst.

The Court also did not accept that the flatulence incident, if proven, would necessarily amount to bullying and made no finding of fact that Mr Hingst was otherwise subjected to bullying behaviour, other than a finding that there was some tension between Mr Hingst and a colleague regarding Mr Hingst’s work performance.

Whilst a “discrete or peripheral incident”, that was largely rejected by the Court, the flatulence incident did play a role in the Court finding that Mr Hingst’s injury was not reasonably foreseeable, because the Court found that there was no evidence that Mr Hingst behaved in such a way as to put anyone on notice that he was at risk of suffering a psychiatric injury and that he actually behaved in a contrary manner – illustrated by the manner in which he actually “pushed back” against a work colleague over the flatulence incident by nicknaming the colleague “Mr Stinky”.

The Court concluded that Mr Hingst had not established any negligence on the part of his former employer, because he failed to prove that the employer breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury.

The Court dismissed Mr Hingst’s claim.

The full judgment of the Court is available here.