When “Go put on some lippy” may not be the response to an allegation    of bullying     

April 2014

A recent decision by the Supreme Court of Queensland (Keegan v Sussan Corporation (Aust) Pty Ltd [2014] QSC 64)  demonstrated that  failing to appropriately deal with a bullying complaint can be costly. 

Ms Keegan, a former assistant manager employed by retail chain Sussan, alleged that she suffered a major psychiatric injury over 11 days due to bullying and harassment by her new manager, Ms Clarke. As a result of her severe mental decline, Ms Keegan was certified as unable to return to work again. 

Ms Keegan sued Sussan, claiming $1.2 million in damages for personal injury and consequential loss as a result of Sussan's negligence, breach of contract and breach of statutory duty. 

Ms Keegan, an assistant manager at Sussan's Cairns central store for about six years, took a period of parental leave. While she was on leave, the current store manager left, and Sussan's Queensland Business Manager, Ms Makarein, hired Ms Clarke to replace her. 

During the recruitment process, Ms Makarein contacted a former employer who Ms Clarke nominated as a referee. The former employer informed Ms Makarein that she would not hire Ms Clarke again and that she "did not believe that Ms Clarke was manager material and she would need to learn management skills and people skills".  Despite this reference, Ms Makarein employed Ms Clarke.  

Ms Clarke,  had never worked in retail fashion, was given training by Ms Makarein that was limited to on the job training and induction which included Sussan's bullying and harassment policy. 

After Ms Keegan returned to work, in September 2010, Ms Clarke, the new store manager, subjected her to conduct Ms Keegan believed was bullying.  

On Day 3, Ms Makarein telephoned Ms Keegan to ask how it was going between Ms Keegan and Ms Clarke. Ms Keegan stated that Ms Clarke "was good". 

However, following criticism by Ms Clarke in relation to Ms Keegan's floor mopping the following day, Ms Keegan telephoned Ms Makarein in tears and raised her concerns again. 

After listening to her complaint, it was alleged that Ms Makarein advised Ms Keegan to put some lippy on and go home to her bub, and that she, Ms Makarein would speak with Ms Clarke. 

Sussan's policy on bullying and harassment was not followed. The policy required that complaints be taken seriously, treated confidentially and investigated. Instead, Ms Makarein informed Ms Clarke about Ms Keegan's allegations and told her to be "more mindful" of how she dealt with Ms Keegan in the future. 

On Ms Keegan's return to work, Ms Clarke confronted Ms Keegan about her allegations and her behaviour worsened. Upon complaining to Ms Makarein that matters were worse, Ms Makarein responded that Ms Keegan had to "work it out for herself". 

Ms Keegan consequently declined mentally and was certified as unable to return to work. Ms Keegan's mental decline was so severe that she became incapable of caring for herself or her child, requiring her husband and mother to care for both. 

Ms Keegan brought a common law claim for negligence, breach of contract or breach of statutory duty. 

Sussan denied liability for Ms Keegan's psychiatric injury and argued that: 

The Court disagreed with Sussan's arguments. Instead, the Court found that Sussan breached its duty of care to Ms Keegan and caused her injury. Specifically, the Court found that: 

·             Ms Clarke engaged in unreasonable and excessive behaviour against Ms Keegan; 

·             Sussan knew that Ms Clarke was "inexperienced" and should have expected some challenge on Ms Keegan's return from leave. However, it was initially not aware of Ms Clarke's behaviour and therefore a reasonable person would not have foreseen Ms Keegan suffering a psychiatric injury; 

·            However, Ms Keegan's call to Ms Makarein "put Sussan on notice" that if the matter was not dealt with appropriately, it was reasonably foreseeable that Ms Keegan would suffer psychiatric injury; 

·             Ms Makarein completely failed to apply and follow Sussan's bullying and harassment policy or otherwise take another appropriate approach to address Ms Keegan's complaint. Instead Ms Makarein's "patronising advice" and method of dealing with the issue clearly indicated that she did not take the complaint seriously; 

·             Sussan was responsible for Ms Makarein's and Ms Clarke's actions; 

·            While Ms Keegan's personality traits made her more vulnerable to suffering an injury and Ms Keegan's husband and mother's assistance impeded her mental recovery, these factors were not causative of her injury. 

Consequently, Ms Keegan was awarded just under $240,000 (after deduction of approximately $66,000 refund to WorkCover). 

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