June 2018


Judge: bullying claimed for revenge

by John Reynolds, KT Journalism

A Victorian construction company administrator who lost his job in the global financial crisis (GFC) launched an unfair dismissal claim in revenge, Victorian Supreme Court Justice Rita Zammit has ruled.

She said David Hingst was angry and invented bullying allegations to prove his case. It was "most telling and disturbing" Hingst reconstructed work events to suggest his superiors were "in cahoots" to get him fired, she said.

"[Hingst] was profoundly hurt by the loss of his employment [and] it was clear his position was of the utmost importance to him. [He] reacted in an extreme and unreasonable way to the termination, which led him to seek revenge against those he blamed for his loss."

Justice Zammit heard Hingst was a contract administrator with Construction Engineering (Aust) Pty Ltd (CEA) from 13 May 2008 to 8 April 2009. He was made redundant with another employee after CEA lost clients in the GFC.

But Hingst, who was self-represented, argued he had been subjected to bullying throughout his employment and his three immediate supervisors conspired against him.

He said he had been abused on the phone and subjected to workplace humiliation; alleged CEA-tendered emails relating to his redundancy were fabricated after he initiated legal action; and sought to repudiate a redundancy deed of release, arguing he had signed it under duress.

Hingst claimed $1.8 million for psychiatric injuries he said resulted from his termination. CEA denied the allegations and produced emails and medical notes to support its case.

On 29 March, Justice Zammit rejected all Hingst's arguments. She acknowledged he had "given himself a difficult and demanding task" by being unrepresented but that was not why he lost.

CEA's legal team had assisted Hingst during the trial, including giving advice and not objecting to evidence that would normally be excluded. But he ran his case like a "judicial commission of inquiry" into CEA's operations rather than a bullying claim and seeking revenge on those he blamed for his redundancy.

Justice Zammit said Hingst was an unreliable witness, whose evidence did not substantiate any of the alleged incidents at CEA. Hingst was not a poor historian but "lacked objectivity, which coloured his evidence".

Even allowing for him being self-represented, his evidence was often confusing and he could not focus on issues being discussed, wanting to constantly refer to the alleged conspiracy and deception against him.

"[Hingst's] unreasonable and relentless attempts to prove a conspiracy against him were a significant feature of his cross-examinations [and] demonstrated his flawed logic and desire to reconstruct events to fit his conspiracy theory," Justice Zammit said.

"There was a sense in how [he] conducted himself, and in his line of questioning of several witnesses, that he was endeavouring to exact revenge on those he blames for his redundancy. His cross-examination traversed all aspects of [CEA's] operations in what seemed an ill-conceived attempt to blacken [CEA] generally."

She said Hingst often asked defence witnesses inappropriate, irrelevant questions, seeking to inquire about their personal lives. They included questions about personal marijuana use; pornography; alcohol consumption; and alleged homophobia. He asked one witness whether he was a "closet gay".

"These questions were clearly asked for no purpose other than to damage witnesses' reputations," Justice Zammit said. "The [closet gay] question demonstrated his lack of focus and insight into the issues in this case [and] his preparedness to intimidate witnesses."

Justice Zammit said Hingst's demeanour helped her form a view on the likelihood he was bullied at work or, if he was, how he would respond. It was telling that Hingst stalked, abused and swore at former colleagues after being made redundant.

"It was clear from the way [Hingst] ran this trial he was not intimidated or cowed by any witnesses," Justice Zammit said. "He was forthright, aggressive and asked inappropriate and demeaning questions. His conduct and his management of the trial sits comfortably with the [finding] he was not bullied at work."

Justice Zammit said there was evidence the psychiatric illness he sustained came from an ongoing dispute with his son and had no connection to his employment.

His psychologist's notes referred to "resenting issues" associated with Hingst's "16-year-old son; loss of a job...finances; little social contact, friends and relatives; parents separated at age of four years and subconscious impact.

"There is no mention of bullying elsewhere in the clinical notes. If [Hingst] had been suffering from bullying at work, I consider it likely this would have been referred to in [the] handwritten note," Justice Zammit said. "This was not a document prepared for the purpose of litigation but for his own treatment. It is reasonable to expect he would be in the best position to identify matters or events that were causing him concern."

She said the absence of bullying accusations by Hingst while still employed cleared CEA of suggestions it had breached its duty of care. Hingst never alerted his employer or supervisor of stress or that he was at risk of developing a psychiatric illness. He continued to work and never complained. 

"The evidence suggests [Hingst's] fellow employees were understanding of the issues with his son and allowed him take time off work where necessary," she said. "It is likely the real cause of [Hingst's] mental state today was a combination of domestic stressors and, most significantly, the stress of losing his job."

Justice Zammit also found CEA had not fabricated evidence or manipulated emails to backdate them to suit its defence. Expert evidence suggested considerable IT knowledge would be required to create an email with a backdated time and date stamp. None of Hingst's supervisors had that knowledge.

Forging an email would have required CEA employees to alter information "on hundreds, if not thousands", of archived emails.

But, despite that evidence, Hingst refused to accept the legitimacy of CEA's assurance an email referring to Hingst's employment was not faked. Hingst's "persistent and irrational" belief the email was forged pointed to the unreliability of all his evidence.

Justice Zammit said, for similar reasons she could not accept CEA had tricked Hingst into signing his separation deed, took unconscionable advantage of him, or that he signed under duress. He had sought legal advice before signing and hand delivered the completed deed to CEA's human resources department.

‘[Hingst] is educated and speaks and reads English fluently," she said. "There was no evidence [he] was not capable of acting in his own best interests.
"He knew and understood the terms of the deed before signing it and was not under a special disability evident to [CEA]."

(Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018], VSC 136, 29/03/2018)

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