A Melbourne engineer claims to be the victim of workplace bullying after a colleague repeatedly farted near him, and deliberately “thrusted his bum” at him.
David Hingst had sought $1.8 million in damages in the Victorian Supreme Court last year, but the case was thrown out with the judge ruling that the behaviour did not constitute bullying.
He’s now appealing that decision in the Court of Appeal, arguing that “flatulence was a form of bullying”.
The case has raised an interesting question when it comes to employment law – is repeated farting a form of workplace bullying?
The details of the complaint
Mr Hingst worked for Construction Engineering where he claimed his ex-colleague Greg Short was a serial farter.
“I would be sitting with my face to the wall and he would come into the room, which was small and had no windows,” Mr Hingst told media after the hearing.
“He would fart behind me and walk away. He would do this five or six times a day.”
The structural engineer, who previously lived and trained in Germany for 20 years, said Mr Short — at the time his manager — had also abused him over the phone and at times would taunt him with gestures.
But the appeal judges also heard that Mr Hingst had referred to his colleague as “Mr Stinky” on numerous occasions.
“And you sprayed deodorant at him,” Justice Phillip Priest said.
Justice Priest said farts were not the key issue in Mr Hingst’s original claim, pointing out that it had focused more on the abusive phone calls.
But Mr Hingst said the flatulence had caused him “severe stress” and should still be taken into account.
He claimed Mr Short’s behaviour was part of a conspiracy to get rid of him, and says his time at Construction Engineering caused him psychiatric injuries.
Mr Hingst, who has represented himself throughout the trial and appeal, is seeking leave to appeal on several grounds.
He claims he didn’t get a fair trial as he felt under pressure from Supreme Court Justice Rita Zammit when questioning witnesses, and felt the judge was biased against him.
But Justice Priest said the trial judge seemed to show “remarkable latitude” to Mr Hingst during the 18-day proceeding.
“The very distinct impression I get is you were given every opportunity to put your case,” he said.
What is workplace bullying?
According to the Fair Work Act, a worker is bullied if, while at work, an individual or a group repeatedly behaves unreasonably towards that worker, and that behaviour creates a risk to that worker’s health and safety.
The key elements to remember are that the behaviour needs to be:
- done repeatedly
- and must impact the worker’s health and safety
Bullying can take the form of verbal, physical, psychological, or social abuse by an individual or group of people in the workplace.
George Calderon, employment lawyer and seconded consultant at Discrimination Claims, said repeated farting could fall into the category of workplace bullying.
“In this case, I think Mr Hingst can show that the behaviour was repeated and unreasonable, but what he will still have to prove is that all the farting impacted on his health and safety,” Mr Calderon said.
“I think that’s why he is arguing to the appeals judges that it caused him severe stress.
“Whatever the outcome of this case, I think it’s a reminder that workers should always be considerate and respectful of their colleagues by not subjecting them to any unnecessary offensive sounds and smells.
“If you’re going to let one off, try not to do it in enclosed spaces like small offices, cars or lifts – and certainly don’t taunt your co-workers by shoving your bum in their face.”
The Court of Appeal judges will deliver their ruling on Mr Hingst’s appeal on Friday.
George Calderon is one of our specialist team at Discrimination Claims who can assist workers who have been subjected to bullying and harassment.
If you have been subjected to bullying or harassment, you may be entitled to compensation.
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