…committed by their employee – vicarious liability – public interest disclosure –psychological injury
The plaintiff was employed as a Custodial Corrections Officer with Queensland Corrective Services.
On 22 January 2017, the plaintiff was punched in the stomach by his immediate supervisor (Walker) when they had a disagreement about whether a particular prisoner could have a contact visit.
After punching the plaintiff, Walker turned to the other officers’ present and said words to the effect, ‘I’ve just had to accost Mr Mason and I don’t want to have to do it to anyone else’.
An unknown officer reported the incident to management and the plaintiff was asked by the section manager (Mosley) to provide a report. At this point the plaintiff expressed deep concern to Mosley about the consequences of reporting Walker and the possible reprisal action.
Following the reporting of the incident, the plaintiff was subjected to reprisals from other staff and was called names like ‘dog’ and ‘nark’. In mid-February 2017, the plaintiff was rostered on with Walker. He contacted the operations supervisor and advised that he was not comfortable having Walker as his direct supervisor.
The plaintiff was then redeployed to another part of the jail and offered the services of the Employee Assistance Program (Optum). The plaintiff heard through other officers that Walker was openly discussing the assault with staff, describing it as a ‘little back hand’ and that the plaintiff should be careful around the place.
The plaintiff raised his concerns to Mosley noting that he was ‘completely lost as to what to do’. Mosley said that he’d pass it on to management to deal with and an internal investigation was undertaken resulting in Walker been suspended for a period.
Judgment for the plaintiff in the sum of $148,114.85, clear of the statutory refund. The decision was delivered on 12 May, 2023.
The critical issues to be determined were firstly, whether the defendant was vicariously liable for the conduct of Walker and secondly, whether there was a breach of duty by the subsequent conduct of the managers in how they dealt with the investigation and the implementation of its own policies.
The defendant argued that they were not vicariously liable for the criminal conduct of Walker as it was not foreseeable and a reasonable person, in the defendant’s position, would not have taken any additional precautions to train or instruct employees not to commit a criminal act. They further argued that they took appropriate steps to investigate the incident and support the claimant by offering Optum.
In regard to a finding of vicarious liability, his Honour considered that Walker had taken advantage of his position of authority with respect to the plaintiff and concluded that the wrongful act was committed within the course or scope of employment.
In reaching this conclusion, Judge Long relied upon the supervisor’s statement immediately after the assault to the other officers that he had to accost Mr Mason and did not want to have to do it to anyone else.
He also noted at paragraph 46 that, ‘the wrongful act here was not in essence any manifestation of some animus or emotional outburst as between employees or in respect of an employee, but rather a wrongful form of management of a subordinate by a superior or supervisor and in the exercise of the authority vested’.
In relation to the subsequent reprisal action and investigation, his Honour held that the defendant was on notice of the plaintiff’s concerns at the time Mosley asked him to provide a statement.
From that point, the defendant was not just required to investigate the complaint but also to support the plaintiff in accordance with both their own policy and protections for those who make public interest disclosures. This included proactive remedial action to ensure the plaintiff was not rostered on with Walker and greater support than merely offering a free counselling service.
This compensation law casenote appears courtesy of Travis Schultz & Partners (TSP), where the author, Beth Rolton, is a Partner. As part of the firm’s commitment to providing ongoing legal education, TSP practitioners review relevant judgments and prepare case summaries for the legal profession. A free searchable catalogue of compensation law casenotes is available at schultzlaw.com.au/case-summaries (registration required). The full version of the judgments can be found at austlii.edu.au.