Farting at work is not bullying

March 2018

The plaintiff, Mr David Hingst, was employed by the defendant, Construction Engineering (Aust) Pty Ltd, as a contract administrator from 13 May 2008 to 8 April 2009.  

It is important to record that the plaintiff prepared his own case and was self-represented at trial. 

Mr Hingst claimed that he was bullied in the workplace during this period and, as a result, has developed psychiatric and physical injuries, for which he is entitled to damages in the sum of $1,805,138.  He further complains that the defendant unlawfully terminated his employment. 

The law on bullying imposes on an employer a duty to take reasonable care to avoid causing its employees a recognisable psychiatric injury. 

The defendant denied all the claims and Justice Rita Zammit did not believe Hingst was bullied at work, and in dismissing the claim, accepted that his redundancy was genuine. 

Hingst alleged to the court that his supervisor, Greg Short, would “lift his bum and fart” on or at him, sometimes daily. 

Short told the court while he remembered farting, he didn’t recall thrusting his backside directly at Hingst to deliberately offend him. 

He said that there may have been some cultural misunderstanding because Hingst was German, and didn’t really understand that farting was just an Australian way of joking around. 

Short said: “I knew that [Hingst] took quite offence to it and I – to be honest at the time I didn’t understand, but then obviously realising it was [Hingst] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it’s just – that’s what happens.” 

The court heard that Hingst labelled Short “Mr Stinky” and at one stage sprayed him with deodorant. 

Zammit rejected Hingst’s claims of “malicious” flatulence, saying it was “an offence that has its origins in cultural difference — rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario.” 

The courts decision was that the plaintiff has not established any negligence on the part of the defendant. He has failed to show that the defendant breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury. There was no evidence that the defendant knew, or should have known, that the plaintiff was at risk of mental harm. 

Mr Short did not bully or harass the plaintiff. Nor did any other employee at the defendant company. It follows that the plaintiff’s bullying claim must fail. The plaintiff’s unfair dismissal claim must also fail as his redundancy was genuine.  

The trial lasted 18 days and involved 15 witnesses. 

Hingst v Construction Engineering (Aust) Pty Ltd (No3) [2018] VSC 136