Worker not so lucky: Court dismisses claim for psychiatric reaction to Kylie impersonator’s antics

In the recent case of Billington v Sussan Corporation (Aust) Pty Ltd¹, the County Court of Victoria considered the nature and content of an employer’s duty of care to an employee who suffered psychological injury as a result of being invited on stage by a Kylie Minogue impersonator at their employer’s annual dinner and awards ceremony.

Facts

The plaintiff Mr Billington commenced employment with Sussan Corporation in 2011 as a business manager. In 2013 and 2014, he was involved in planning and participating at Sussan’s annual conferences and had himself performed on stage. In 2015, the plaintiff attended that year’s annual conference. There were 200 female attendees present, with the plaintiff being the lone male. A Kylie Minogue impersonator with backing performers was hired to perform.

On several occasions during the impersonator’s performance, the impersonator invited the plaintiff onto the stage. On the first occasion, the plaintiff sang with the impersonator, and upon exiting the stage reported feeling uncomfortable to two other employees. On the second occasion, the plaintiff was asked personal questions in front of the audience, including in relation to his marital status. He was then taken backstage to change into hotpants, a bikini top and a hat, before returning to the stage to perform a short dance and sing to the crowd.

The plaintiff claims he suffered humiliation and embarrassment and soon after ceased working for Sussan – ultimately developing a psychiatric condition. He sued his employer in negligence and for breach of contract.

What was the nature and content of the duty of care?

His Honour Judge O’Neill considered four main principles in determining the nature and content of a duty of care² and observed:

1. The scope of an employer’s duty of care depends on the circumstances of the case;
2. Employers need to take all reasonable steps to guard against risk of injury to employees, and while a heavy burden on employers, that duty has limits;
3. The duty owed needs analysis before determining if the duty has been breached; and
4. There is no breach of duty unless a situation can be seen to arise which ‘requires intervention on a test of reasonableness‘.

In this case, the plaintiff alleged Sussan’s duty of care extended to a duty to take particular steps to prevent harassment on the relevant evening, including by preventing employees from encouraging or cajoling the plaintiff to get on the stage, or by providing the impersonator with Sussan’s various workplace safety and harassment policies. His Honour disagreed, and decided such measures were unreasonable impositions on Sussan.

The Court examined various factors in the case to determine that the employer’s duty did not extend to preventing psychiatric harm to the plaintiff in the circumstances of what occurred that evening. The factors included:

1. At Sussan’s 2013 and 2014 events, the plaintiff had helped plan and present the entertainment and had been an active on-stage participant;
2. It was reasonable to expect that people would voluntarily or upon the impersonator’s request become involved in the entertainment by going onstage;
3. There was no evidence that any senior managers knew the impersonator would ask personal questions of, or dress up, any participants; and
4. There was nothing to suggest that the plaintiff might suffer a significant psychological reaction to his involvement.

His Honour further stated that even if Sussan’s duty extended as was alleged, the plaintiff’s case would still fail, as the risk of psychiatric injury was not reasonably foreseeable to Sussan in the context of what had occurred on the night. The ruling that the plaintiff’s injury wasn’t reasonably foreseeable also meant that the plaintiff’s parallel claim in breach of contract failed, as the damage he was claiming was too remote.

Conclusion

In the lead up to the Christmas party season, this decision demonstrates that employers do not need to go to extreme lengths to control every conceivable workplace risk inherent in arranging a lively end-of-year event.

Employers should have regard to all of the circumstances of the event, including the nature of the entertainment planned and their knowledge of the employees who may become involved. Taking those factors into account, employers should ask themselves if aspects of the planned events for their staff could realistically cause psychiatric damage to their workers. As the court put it, might a situation arise that would require intervention on the part of the employer “on a test of reasonableness”? If so, an employer should take reasonable steps to control those risks.

This article was written by David Guthrie, Partner, Dylan Younane, Special Counsel and Julia Cowell, Law Graduate.

¹[2020] VCC 1963.
²[2020] VCC 1963 at paragraph [180].