Intimidating Flatulence in the Workplace

In a widely reported case, the Victorian Supreme Court ruled that flatulence, in that instance, did not amount to workplace bullying.

There hasn’t been a new fart joke in 40 years and the wide coverage of this case has already led to a race to the bottom by everyone trying to provide legal analysis better suited to page 3 of the Sun with obvious and terrible dad jokes.  It doesn’t feel right to pick such low hanging fruit, so I’m going to play this one straight.

In Hingst v Construction Engineering (Aust) Pty Ltd (No. 3) [2018] VSC 136, Mr Hingst sued his former employer for negligence causing a psychological injury. The negligence focused on a series of events that occurred at work including a number of incidents when his supervisor would deliberately break wind near him. Mr Hingst sought $1.8 million. Workplace bullying, and bullying in general, is amorphous and can range from blatant to innocuous. It brings to mind Justice Stewart’s words who was struggling with an inclusive definition of pornography; “I can’t define pornography, but I know it when I see it“. Fortunately, the Courts have a bit more guidance when it comes to workplace bullying. From the judgment:

9 There is no statutory definition of what constitutes bullying in the workplace. A useful working definition, however, can be found in the reasons for judgment of Osborn JA (with whom Harper JA and Macaulay JA agreed) in Brown v Maurice Blackburn Cashman.[9] His Honour quoted WorkSafe Victoria’s guidance note on Prevention of Bullying and Violence dated February 2003 as follows:

Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.

Within this definition:

Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.

Behaviour includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.

Risk to health and safety includes a risk to the mental or physical health of the employee.[10]

Osborn JA went on to observe that this definition raises two threshold questions:

(i) was there unreasonable behaviour directed towards [the plaintiff], ie behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten a person; and

(ii) if there was, did it occur repeatedly?

Mr Hingst was found to have played along at the time by giving his supervisor the nickname of “Mr Stinky” and sprayed him with deodorant on another occasion.

The Court concluded that if there was a psychological history it was likely caused by Mr Hingst’s dismissal and not the outlined incidents.

The inference is that a reasonable person would not find this conduct to be victimising, humiliating or threatening. It has been left out of most of the reporting for convenience, but each instance will be treated uniquely and this conduct would very likely be considered bullying in future cases.

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