The worker’s employment was terminated after many warnings that he was too slow and inefficient. The worker felt he was being bullied and claimed it caused him a psychological injury.

Next-day delivery guarantee

The worker was employed in a western Sydney warehouse, picking and packing haircare products for delivery. His employer operated on a ‘just in time’ inventory model.  It promised orders for its products would be delivered to most places the day after receiving the order – a selling point on which the company relied to succeed and grow its business.

In the course of his employment, the worker claimed he’d been frequently abused, bullied and humiliated by his immediate superiors. He said his supervisor’s conduct – in the presence of fellow workers – included yelling at him, calling him an ‘idiot’ or a ‘f****** Indonesian’ and accusing him of being too slow. 

He also claimed his supervisor would physically block him with his shoulder, and that he’d thrown plastic bottles at him.

The worker had complained about the supervisor’s behaviour to the manager, who took no action, increasing the worker’s anxiety.

The worker alleged that during lunch, in the presence of the manager, the supervisor had come over to him and asked him what he was eating. When he replied that it was pork, the supervisor said, ‘Of course it is, you're a pig’.

Too slow, too many errors

The job required the picking and packing of orders to be done at speed in order to meet the delivery guarantee. The worker knew he had to work fast and that it was part of the supervisor’s job to monitor his picking speed and whether he was meeting established targets.

For a brief period, the worker was required to drive a truck to retrieve stock from another warehouse, a job that generally took him almost twice as long as another worker who routinely made the trip. He’d been upset and stressed when the supervisor repeatedly berated him for his slowness.

After numerous complaints by the supervisor, the manager required him to attend a counselling and disciplinary interview, where he was advised of the issues with his job performance. The record of that interview notes an unacceptably high rate of errors, a failure to follow warehouse processes, and a refusal to cooperate with a request from the supervisor.

The record notes that he offered ‘different excuses all the time and there appears no intention to accept or intention to make it better next time’. It claimed he was delaying credit processing – ‘you are just talking and talking and too slow to get things done’.

In response, the worker undertook to try to improve his performance but also complained that the supervisor was always badgering and maltreating him.

Following the meeting, the manager conducted an investigation of the worker’s complaint, but none of the other staff members corroborated the worker’s allegations, and the supervisor denied them.

Speed and accuracy inherent requirements of the job

When the worker’s job performance showed no lasting improvement – his picking speed was much lower than that of other workers and he was not meeting set targets – management informed him it was their view that he could not perform the inherent requirements of his role and terminated his employment.

The worker sued his employer in negligence, seeking damages for a workplace injury he said he suffered as a result of a breach of the employer’s duty in regard to the bullying and harassing behaviour of his superiors.

The judge in the District Court of New South Wales found that while the worker’s supervisor might have shown some frustration with him, the evidence did not establish to the requisite standard that he’d been bullied or harassed, or that the employer had breached its duty of care to him.

‘In the event that I am wrong in my assessment,’ he added, ‘…then [the worker] is entitled to damages in the sum of $453,927’.

The judge found in favour of the employer and ordered the worker to pay the employer’s costs of the proceedings.

The bottom line: If a worker cannot perform the inherent requirements of the job, a court may uphold an employer’s decision to terminate the worker’s employment.

Read the judgment: Darma v Claremont Connections Pty Limited [2021] NSWDC 509 (24 September 2021)