'Large amounts' of evidence available to employer in 2010, says court
The County Court of Victoria recently dealt with a case involving a worker seeking to extend the time limit for bringing a damages claim against her former employer. The case revolved around allegations of workplace sexual harassment and the subsequent psychological impact on the worker.
The worker argued that her severe psychiatric conditions, stemming from the alleged harassment, had impacted her ability to pursue legal action within the standard time frame. She also claimed that her previous legal representatives had failed to properly advise her about the time limits associated with her common law rights.
The employer, on the other hand, argued that granting an extension would cause significant prejudice due to the passage of time, altered premises, and potential memory loss of witnesses.
The worker, who had been employed at a DVD manufacturing company, said that she experienced sexual harassment from a co-worker in 2010. The Court heard that the worker suffered from severe psychiatric conditions following the alleged incidents, including major depressive disorder and severe panic disorder with agoraphobia.
The worker started working at the company in 2005 as a casual employee and became a full-time worker in 2006. She said that at the start of 2010, a co-worker began to sexually harass her. This involved brushing against her and touching her hands.
On 23 February 2010, she said that the co-worker made a comment directly to her that she had "beautiful breasts". On another occasion, he allegedly gave her an unwanted gift.
The workplace became aware of the issue in about March 2010. By April 2010, the worker began to take days off work. She ended work in October 2010 and has not worked since then in any capacity.
Despite the worker's mental health struggles, the Court found that her psychiatric condition did not significantly impair her ability to understand legal advice. The judge noted:
"I do not find [the worker's] psychiatric injury had a substantial effect on her ability to understand legal information provided to her by her lawyers. I find her mental state played little to no role which explains the reasons for the inordinate delay."
The Court also examined the legal advice provided to the worker by various law firms. It was found that while the worker had been informed about her common law rights, she had not been adequately advised about the time limits associated with these rights.
The worker had engaged several law firms over the years to handle different aspects of her case. She first engaged a law firm in December 2010 to handle her WorkCover claim. Later, she engaged another firm to handle her sexual discrimination claim in the Australian Human Rights Commission and then the Federal Magistrates Court.
The Court considered whether the worker's former solicitors might have been negligent in failing to provide comprehensive advice about her legal rights and associated time limits.
While the judge found that there were "some prospects" of demonstrating negligence, this factor was given minimal weight in the overall decision to extend the time limit.
The judge explained:
"I balance [the worker's] right to sue her previous solicitors and its relevance to my discretion to refuse the application. However, there is simply not enough evidence before me to consider the real prospects of her negligence claim(s) against her solicitors and therefore I cannot give it real weight in the application before me."
The employer argued that granting an extension of time would cause them significant prejudice. They said that the premises were altered after 2010 and then closed, making a view of the site challenging. They also mentioned that CCTV footage of the premises was not kept beyond ninety days.
The employer also argued that while they had obtained statements from relevant witnesses in November 2010 regarding the initial allegations, further allegations had since emerged.
These newer allegations included claims that the worker carried a metal pole to act as a barrier between her and the alleged harasser, and that she made barriers around her machine with trolleys and bins to prevent the alleged harasser from touching her.
The Court acknowledged some specific prejudice to the employer, particularly regarding the inability to view the premises where the alleged incidents occurred. However, the judge found that much of the potential prejudice was reduced by the existence of contemporaneous documents and witness statements.
The Court stated:
"I accept that there is general presumptive prejudice to [the employer] caused by the very significant length of time that has elapsed since these events occurred in 2010. However, there is a large amount of material which was made available to [the employer] in 2010 regarding witness memory by the taking of statements in the Circumstance Investigation Report that ameliorates much of this prejudice."
In weighing all the factors, the Court had to consider whether the employer could still obtain a fair trial despite the delay. The judge noted the existence of various documents, including the initial investigation report, HR notes, and medical records, which could assist in refreshing witnesses' memories and supporting the employer's defence.
The judge also considered the worker's actions once she became aware of the time limits for her claim. The Court found that the worker acted promptly when she learned about the limitation period:
"I accept she became aware of the limitation period regarding her common law rights following a Google search and contacted [her lawyers], supported by her email of 24 August 2018."
Ultimately, the Court decided to grant the extension of time. The judge concluded:
"Overall, then, while the delay is a long period, it is my assessment that [the employer] can obtain a fair trial. In all these circumstances, I will grant [the worker] the extension of time that she seeks."
This decision highlights the importance of thorough documentation and prompt action in workplace investigations. It also shows the interplay between mental health considerations, legal responsibilities, and the principles of fairness in employment-related litigation.
