The recent case of Hingst v Construction Engineering involved an allegation that the plaintiff’s immediate supervisor deliberately farted in his specific direction.
The case raises questions about what constitutes bullying and unacceptable workplace behaviour. Indeed, it raises questions about the potential consequences of even an involuntary act for employees and employers.
The Australian Public Serivce Code of Conduct, is particularly strict on the kind of behaviour which can constutite unacceptable worplace behaviour. In the public service, a mental element, such as knowledge, intent or recklessness, is not (usually) required to establish a breach of the code.
In the case of Hingst, it was the termination of Hingst’s employment that led him to return obsessively to the flatulence episode, at which pint the alleged psycholgilcal harm had not manafiested. A reasonable person would not conclude in these circumstances that Short’s flatulence would humiliate, offend, intimidate or cause Hingst unnecessary hurt or distress, and the Court held that the flatulence did not breach standard of workplace behavour and give rise to compensation.
Contrast this with the case of Bell v Boom Logistics, where an act of targeted flatulence was found to “possibly attract dismissal, being an assault”. However, this incident was manifestly targeted: as the victim stated, the perpetrator “had his hand on his bum cheek, pulled his cheeks apart and farted in my face”.
Regardless, for any employer, farting, when it is part of a pattern of bullying or abuse, could give rise to a claim in negligence. In such cases, employees must establish that the harm was reasonably foreseeable and recognisable, and the employer failed to take reasonable steps to mitigate that risk. This is the standard for any workplace to avoid an adverse Court decision.
