Social media bullying: Lorna Jane smacks down claim

Social media bullying: Lorna Jane smacks down claim
By Jim Wilson on 12 December 2017 Activewear retailer Lorna Jane has won a negligence lawsuit brought against it by a store manager who claimed the company failed to prevent workplace bullying.

The company’s social media policies and response to employee posts were key to defeating the plaintiff’s claim.

Background


Plaintiff Amy Louise Robinson was formerly employed for 20 weeks as a manager of a Lorna Jane’s store near Brisbane Airport. She alleged that the development manager, Ms McCarthy, bullied her, and that she thereby suffered a psychiatric illness and the triggering of her pre-existing personality disorder. She claimed she experienced a consequent loss of employment and employability.

In August 2012 an email was sent by one of Ms Robinson’s colleagues to the national sales manager alleging that Ms Robinson had been bullied, although no one was specifically identified in the email as being the bully.

Ms Robinson also claimed that Ms McCarthy had called her names such as being “cheap” and as being a “generator”.

Ms McCarthy defined “generator” on a social media post as: “… a new name for the people I despise – I call them ‘Generators’ purely because they fill their days generating more problems for me to deal with. Generators are similar to mutants – people who are genuine oxygen thieves”.

There was also another social media post about being "surrounded by turkeys". 

Ms Robinson also claimed that bullying remarks were made about her body weight and that Ms McCarthy was “dismissive” in a “general sense”.

Ms Robinson’s doctor signed her off work with stress in December 2012. She subsequently applied for workers compensation and, as at the time of the judgment (early November 2017), had not returned to work.

Ms Robinson claimed more than $570,000 of damages because of the employer’s negligence. She argued that Lorna Jane was vicariously liable for the psychiatric injury she suffered owing to alleged bullying by Ms McCarthy.

Vicarious liability


An employer may be held vicariously liable, the Queensland District Court noted, for the wrongful act of an employee when that employee takes advantage of his or her position in respect of the victim.

Judge Koppenol then observed that for Ms Robinson to succeed then she would need to prove (a) that bullying actually happened and (b) that the company should be held vicariously liable.

Alleged wrongful acts


Judge Koppenol did not accept much of Ms Robinson’s evidence and was not satisfied that many of the various incidents, such as the insults and being “dismissive”, had actually happened.

However, it was held as a fact that Ms McCarthy had made generic disparaging social media posts.
 
But Lorna Jane was not vicariously liable for these posts. There were several reasons for this finding:
  • the posts did not specifically identify the plaintiff
  • colleagues did not think that the posts applied to anyone in particular
  • Ms McCarthy had thought that the posts were only accessible to her friends and not to the general public
  • Ms McCarthy acknowledged the posts were inappropriate and she knew that the company had strict policies in place against social media bullying.
The company’s reaction to Ms McCarthy’s posts was an important factor in ruling that the company was not vicariously liable:
  • the company instructed Ms McCarthy to delete the posts and this was done immediately
  • Lorna Jane disciplined Ms McCarthy and removed the store from the manager’s control
  • the company arranged for Ms Robinson to report to the national sales manager instead of to Ms McCarthy.
“In my view, those were the appropriate steps to take in response to Lorna Jane’s becoming aware of the offending [social media] posts,” the judge held.

Ms Robinson tried to argue that Lorna Jane was vicariously liable because it had a social policy and an anti-bullying policy, which acknowledged the significance of social media bullying in the modern workplace.

Judge Koppenol dismissed that argument because no legal authority was cited to suggest that creating a policy prohibiting wrongful acts would create vicarious liability if the offending employee knew of the policy and did the wrong thing anyway.

Indeed, analysis of the established law indicated that Lorna Jane should not be held vicariously liable.

Lorna Jane could not be held responsible for the social media posts as they were outside the course of, and were not incidental to, Ms McCarthy’s employment. They were not done in the furtherance of Lorna Jane’s interests or under its express or implied authority. The posts were not acts that would arise out of the performance of the employer’s work and they weren’t made “under cover of the authority” of Ms McCarthy’s position as a representative of Lorna Jane. There was no evidence that Lorna Jane permitted the posts or even knew about them.

Held by the court


Ultimately, Judge Koppenol found that Ms Robinson failed to prove any aspect of her various claims and, accordingly Lorna Jane was not liable.

The judge dismissed Ms Robinson’s negligence claim.

Further issues


There were also numerous other important elements to this long and complex judgment, such as direct liability and workers compensation issues. However, they were not dealt with in this summary. Interested readers can find out more in the judgment.

Robinson v Lorna Jane Pty Ltd [2017] QDC 266 (3 November 2017)

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