VIC Defamation - Do I Have A Case?

[S215B]

During a recent meeting at work, a colleague accused me of bullying her. Also present at the meeting was our manager. The allegation was made during a disagreement regarding the allocation of resources when she stated "I don't have to sit here and be bullied". I was taken aback by the statement and immediately asked our manager to fully investigate the allegation as I felt I had done nothing of the sort, and I left the meeting and workplace. I was due to commence a two week higher duties assignment in our Managers role on the following Monday and I advised my manager that it would not be reasonable for me to take up that role, (which would involve managing my colleague) while this allegation existed.

A week after the allegation was made my colleague was asked by a senior manager to provide some documentation or evidence supporting her allegation, which she has done (although I have not seen this document). I have now been advised that there is insufficient basis for the allegation to proceed and that no further action in regards to the allegation will be taken, instead senior management believes the allegation to be a "symptom" of deeper seated problems within the management team and that we will all be undergoing mediation to help us work together better. It strikes me as being "no one has done anything wrong here, let's just move forward and all play nicely"

Whilst I understand the solution planned by my organisation, I remain concerned that such a serious allegation can be made with absolutely no consequence when found to have no basis. For reasons that I don't even understand myself, the allegation hit me quite hard and was distressing. I took some time off work, I also lost a carer development opportunity to act in my managers role and financially lost some higher duties allowance. But perhaps most of all I am concerned that "mud will stick".

Do I have the basis of a defamation case?

 

[Sarah J]

Hi S215B,

You are clearly affected by this statement and perhaps this has hit nerve exposing underlying issues with management matters, workplace relationships, stress etc. However, I do not believe initiating legal action is the best way to address these issues.

Was the colleague actually making a serious allegation that you were bullying her? Or was this just a passing statement that people say in the heat of the moment?

I would say that there is not enough here for a defamation case. A defaming statement is an absolute statement about someone else that is false and harms that person's reputation. Stating something like "person X is a bully (not just to person X, but everyone in general)" may be such a statement. Stating "I am being bullied" is not a defaming statement. It is a personal belief or opinion or experience.

Further, there are other criteria such as the defaming material caused or was likely to cause significant harm to the affected person's reputation. You will also most likely fail on this making out these elements.

 

[AllForHer]

I may be wrong - this isn't my area of expertise - but I don't believe you have a case for defamation here.

Defamation, which in Victoria is governed by the Defamation Act 2005, fundamentally requires three core elements:

1. That the information was communicated by the defendant to a third person other than the plaintiff (publication);
2. That the material identifies the plaintiff (identification); and
3. That the information/material contains matter that is defamatory, regardless of whether the material was intentionally published or not (defamatory matter).

You will struggle to convince a court that the statement 'I don't have to sit here and be bullied' will drastically change someone's opinion about you, or that it even expressly identified you.

Keeping things in perspective, any possible damages you could hope to be awarded out of litigation for this matter would be highly insubstantial - it would cost you more to go to court than what you could gain out of it. Realistically, it has not impacted your earning capacity at all. It didn't lead to job loss, it didn't lead to demotion, it didn't lead to lost pay in any way, and the decision not to take up the opportunity for professional development was your decision - that is, your boss didn't withdraw the offer based on the bullying allegation. Additionally, the investigation - which you requested - amounted to nothing except a proactive managerial decision to retrain their leaders in managing workplace conflict.

For another element of 'keeping perspective', if you hold a grudge against your colleague, she may engage her right to seek a stop-bullying order against you through the Fair Work Commission. That mud will be more likely to stick than the outcome of a bullying investigation which you requested.

I'd be taking this one on the chin and letting sleeping dogs lie.