Whack! Employer found vicariously liable for supervisor’s intentional, unlawful assault on team member

In the recent workers’ compensation decision of Mason v State of Queensland, an employer was found vicariously liable for an intentional, unlawful assault by a supervisor against a team member, as well as for the subsequent retributive behaviour of other employees (essentially verbal abuse for ‘dobbing’ on the supervisor).

Facts

Mr Mason was employed as a custodial corrections officer by Queensland Corrective Services at the Woodford Correctional Centre.

On 22 January 2017, in the presence of other officers, he had a disagreement with his supervisor that culminated in his supervisor punching him in the abdomen. The supervisor then said words to the effect that he had just ‘accosted’ Mr Mason and the other officers present should ‘toe the line’. Mr Mason was shocked, confused and embarrassed but attempted to ‘laugh off’ the incident.

On his return to work after several rostered days off, the section manager, who had heard about the incident, asked Mr Mason to make a report. Mr Mason expressed his reluctance to do so given his significant concern about repercussions of ‘dobbing’ but, after reassurance from the section manager, Mr Mason completed the report.

However, Mr Mason was thereafter subjected to verbal retaliation (name-calling etc.) from the supervisor who assaulted him and from other staff members.

On 15 February 2017, after working for three days under the supervisor, Mr Mason escalated the incident to the acting operations manager, saying that he was uncomfortable working under the supervisor. He was immediately redeployed to another area and, later that day, the section manager offered him access to the employee assistance program.

Despite that, the verbal reprisals continued. On 2 March 2017, Mr Mason reported these to the section manager , who indicated it would be reported to management.

On 9 March 2017, Mr Mason obtained a medical certificate for time off work and subsequently brought a workers’ compensation claim.

The supervisor was ultimately charged and convicted of common assault.

Allegations and evidence

Mr Mason alleged that his employer:

• was vicariously liable for the conduct of his supervisor in assaulting him
• failed to provide him with adequate support after the assault and the retributive behaviour of other employees.

The employer argued that Mr Mason was not a credible witness, particularly in terms of his perception of his treatment in the workplace after the incident.

The employer also led evidence that it implemented a specific policy setting out the support and protection to be provided to persons who make a ‘public interest disclosure’. However, critically, the ethical standards unit officer who investigated the assault gave evidence that the employer had not provided the required protection or support.

Neither the assailant supervisor nor the acting operations manager, to whom Mr Mason reported to on 15 February 2017, gave evidence.

Decision

Despite the employer’s credibility attack on Mr Mason, Judge Long found that Mr Mason had honestly and reliably recounted the evidence, which was broadly corroborated by the evidence of the section manager (particularly Mr Mason’s evidence that he raised concern about retaliation when he was asked to report the incident).

Judge Long held that the employer was vicariously liable for the supervisor’s assault on Mr Mason. His Honour:

• relied heavily 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 that again
• found that the supervisor’s assault was not the result of hostility or an emotional outburst between employees but, rather, was ‘a wrongful form of management of a subordinate by a superior or supervisor and in the exercise of the authority vested in that supervisor by the employer’
• concluded that the supervisor’s actions were performed in the course of his employment.

Judge Long also found that the employer was under a duty to take reasonable care to protect Mr Mason from reprisal and reasonably support him, particularly given he raised concerns about retribution when he reported the incident. In that respect, His Honour found that:

• the employer’s duty required more than simply offering Mr Mason counselling through the employee assistance program
• the employer clearly breached its duty of care (and breached its own policy) by failing to ensure Mr Mason was not rostered on with the supervisor after the assault and to follow up with him subsequently.

Judge Long accepted that, while Mr Mason may have had some pre-existing vulnerability, the assault was the most substantial contributing factor to the development of the injury, with feelings of being unsupported due to the subsequent events also substantially contributing to and perpetuating the injury. His Honour awarded Mr Mason $148,114.85 in damages, clear of the statutory refund.

Take away message

Mason v State of Queensland [2023] QDC 80, gives important guidance with respect to the circumstances in which an employer can be found vicariously liable for actions by its employees.

Typically, employers will not be found liable for intentional, unlawful assaults by their employees. However, this case serves as a warning to employers that this will not always be so, particularly where managers assault subordinates in some pseudo management context.

In Judge Long’s words, ‘a wrongful form of management’ where it is an ‘exercise of the authority vested in that supervisor by the employer’ can give rise to a finding of vicarious liability.