There is a belief that employers will usually be held liable for the conduct of its employees when they hurt other employees.
But this isn’t always the case.
In Robinson v Lorna Jane Pty Ltd (2017), a company’s rigorous anti-bullying and social media policy and proactive enforcement of it meant it wasn’t vicariously liable for the bullying behaviour of an employee.
Ms Robinson was the manager of a Lorna Jane store. She claimed that her supervisor Ms McCarthy, the Lorna Jane Learning and Development Manager, bullied her during work hours and through several posts on Facebook.
She submitted that she was called “cheap”, a “generator” and that Ms McCarthy had made remarks about her weight and had been dismissive towards her.
Ms Robinson argued that this behaviour caused the re-emergence of her psychiatric illness.
In the hearing, she alleged, among other things:
- an employee of Lorna Jane who resigned put Lorna Jane on notice that Ms McCarthy was bullying Ms Robinson, and Lorna Jane failed to take any action;
- when an investigator, Ms Perrins, was brought in to investigate the claim of bullying, she did nothing about it; and
- when Ms Robinson advised Lorna Jane of the Facebook posts, which contained generic complaints of employee incompetence, Lorna Jane did nothing about it or its response was insufficient.
The Court found that the employer did respond to the ex-employee’s suggestion of Ms Robinson being bullied by appointing Ms Perrins to investigate and that Ms Robinson made no complaint at this time to Ms Perrins.
Instead, Ms Robinson suggested some changes to workplace flexibility and Ms Perrins actioned those suggestions.
When Ms Robinson complained of the Facebook posts, Lorna Jane ensured they were deleted and that Ms McCarthy was disciplined.
Ms Robinson was aware of these actions; however, this was not the version of events suggested in evidence by Ms Robinson.
The Court did not accept her evidence and found her to be an unreliable witness.
The Judge accepted there was a stringent policy in place at Lorna Jane about social media and bullying, and that Ms McCarthy was acting outside of her role as an employee when she breached that policy.
When Lorna Jane became aware of a risk, it acted promptly to investigate, removed the risk and punished the wrongdoer. The fact that poor notes were taken and the processes were imperfect did not trouble the Judge.
The lesson from the case for employers is that if they respond immediately to wrongdoing and enforce the rules, they should be safe from vicarious liability.