‘I may have done it once or twice, maybe.’ Picture: iStock
‘I may have done it once or twice, maybe.’ Picture: iStock

Farting on employee ‘not necessarily’ bullying

A CONSTRUCTION firm employee who claimed his former supervisor would regularly "lift his bum and fart" on him has lost a $1.8 million compensation case.

David Hinsgt sued Construction Engineering, where he worked as an entry-level contract administrator between 2008 and 2009, for psychiatric and physical injuries allegedly suffered as a result of being bullied in the workplace.

After an 18-day trial in November before the Supreme Court of Victoria, Justice Rita Zammit last month dismissed the case, finding that even if the farting occurred it "would not necessarily amount to bullying".

Mr Hingst claimed that former supervisor Greg Short "started farting" the day he returned to the head office and took a desk in the communal office space, and this progressed to the point where he would do it every day.

"Look, I don't recall doing it, but I may have done it once or twice, maybe," Mr Short told the court. "But I can't recall. I don't recall doing so, so I'm not flat out saying I didn't or I did. I just can't remember doing it. But if he alleges I did it."

But Mr Short denied he was doing it "with the intention of distressing or harassing" Mr Hingst. "No, not at all, no," he said. The court heard that the constant farting led Mr Hingst to spray deodorant on Mr Short and call him "Mr Stinky".

Another former employee, Phillip Hamilton, told the court he recalled times Mr Hingst "got quite offended by some of the stuff that went on".

"Obviously there were incidences where [Mr Short] had a propensity to walk over to the printer, which was next to me and I think [Mr Hingst] sat behind where the printer was and [Mr Short] would flatulate [sic], he would fart you know and that would happen quite frequently," he said.

"I mean I would laugh it off or you know walk out or whatever. But I knew that [Mr Hingst] took quite offence to it and I - to be honest at the time I didn't understand.

"But then obviously realising it was [Mr Hingst] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it's just - that's what happens. But [Mr Hingst] was always quite often offended when that happened."

The core of Mr Hingst's bullying case was that Mr Short, former supervisor Luke Pepperell and company director Simon Barker were engaged in a "conspiracy" to marginalise him and terminate his employment.

In particular, he claimed he had received a phone call five or six weeks before he was made redundant in which Mr Short abused him about his work performance, allegedly telling him he had "f**ked up", he "kept f**king up", he was "not worth s**" and that he was "not worth" his salary.

Mr Hingst claimed in the background he could hear "not a party but some sort of loud laughter" as if people were listening in to the conversation and finding it humorous.

The "flatulence incidents" were among a number of peripheral allegations that did not amount to bullying but "painted a picture of the working culture" at the company, according to Mr Hingst.

Among the alleged incidents include that during a Christmas lunch, Mr Short asked him if he was "gay" and called him an "idiot poofter". He also claimed he was told his brewed coffee was "s**t", and that he was excluded from being invited to the cafe with the others.

In throwing out the case, however, Justice Zammit found there was no evidence of bullying, describing Mr Hingst - who represented himself - as an "unreliable and unsatisfactory witness".

"Mr Short did not bully or harass the plaintiff," she said. "Nor did any other employee at the defendant company ... Mr Hamilton's evidence was that there was some inappropriate behaviour in the office, including passing wind, but that it was 'typical banter or mucking around'.

"He said that the plaintiff appeared offended by people passing wind. I do not accept the plaintiff's evidence about the frequency of Mr Short's flatulence in the office or that it was targeted at the plaintiff. I prefer Messrs Short and Hamilton's account of this peripheral incident.

"It is difficult to see how Mr Short's conduct could have intimidated or caused distress to the plaintiff. Indeed, on the plaintiff's own evidence, had he not lost his job and been abused over the telephone the flatulence would 'never have been a big issue'."

Justice Zammit said Mr Hingst was "profoundly hurt by the loss of his employment" and "reacted in an extreme and unreasonable way", leading him to "seek revenge against those whom he blames for his loss".

"I am not persuaded that the plaintiff was bullied in the workplace. Nor am I persuaded that the defendant should have known that he was suffering from a depressive or stress-related condition and negligently failed to intervene."

An unfair dismissal claim was "also without merit for the simple reason that it was a genuine redundancy and the deed of release was lawfully executed", she said.

frank.chung@news.com.au



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