In June 2011, the Victorian Crimes Amendment (Bullying) Bill
2011 received royal assent and resulted in a number of small but
crucial amendments to the Victorian Crimes Act 1958. The
Amendment Bill (known as "Brodie's
Law") was drafted following the suicide of a
Victorian employee who had been the victim of systemic workplace
bullying. This tragic incident led to the successful prosecution of
the employer, a director and several co- workers, resulting in
fines totalling $335,000.
Brodie's Law does not attempt to transform the Crimes
Act into quasi-industrial legislation, nor does it
specifically criminalise workplace bullying. Rather, it operates to
extend the definition of stalking to include behaviour such as
making threats to the victim, engaging in abusive acts, or acting
in ways that could reasonably be expected to cause the victim to
engage in self-harm. By contrast, the Fair Work Act 2009
("FW Act") does not contain any
provisions that deal specifically and solely with bullying, and so
far, no other state has yet contemplated similar legislation to
Brodie's Law. However, non-Victorian employers should not
interpret this to mean that non-specific bullying is un-actionable;
employers operating across state borders should note that
Brodie's Law applies to acts committed in Victoria or to acts
committed whilst the victim was in Victoria. Furthermore, bullying
allegations can form the factual basis of a number of claims and
prosecutions in other jurisdictions including the following:
Workers Compensation – an employee who suffers a work
injury and is unable to perform duties may claim statutory
entitlements such as weekly compensation, reimbursement for medical
expenses, and lump sum compensation for permanent disability. While
certain exclusions apply to psychological injuries, such claims
nevertheless have a significant impact on an employer's
Adverse Action / Discrimination – any potentially
harassing conduct perceived to be undertaken for an unlawful or
discriminatory reason may result in an adverse action or
discrimination claim; the former imposing a reverse evidentiary
onus on the employer and the latter exposing an employer to
vicarious liability in relation to employees. Either claim may be
made whilst the employment is still on foot.
Unfair Dismissal – if an employee resigns as a result
of perceived bullying conduct, that employee may bring Unfair
Dismissal proceedings against the employer. If the employee can
establish that he/she was constructively dismissed due to the
conduct and is unable to obtain future employment, compensation may
be awarded up to the value of 26 weeks' wages.
OH&S Prosecutions – while current state-based
legislation applies, it is intended that the model Work Health
and Safety Act 2011 will come into effect in all states and
territories (excluding WA) on 1 January 2012. The Act imposes due
diligence obligations on employers and 'officers' to ensure
compliance with health and safety obligations. Prosecutions may be
instituted where an employer, a person in control of a business or
undertaking, an officer or employee fails to comply with a positive
health and safety duty and exposes an individual to a risk of death
or serious injury or illness. Under the model Act, even the
objectively least serious offences carry penalties of up to
$100,000 for an individual or $500,000 for a corporation.
Breach of Contract – sustained bullying and harassing
conduct may entitle an employee to consider the employer as having
repudiated the employment contract and to seek damages for the
breach. Such claims may be founded on an employer's
non-compliance with contractual bullying policies or grievances
procedures, or alternatively may be grounded upon a breach of the
implied contractual term of mutual trust and confidence.
Complaints of workplace bullying are often made in the wake of
employee dissatisfaction with performance management, which is not
independently actionable under the FW Act. However, employers
should be aware that such complaints and inquiries regarding
available grievance resolution procedures may comprise
'workplace rights' under the FW Act. Employers cannot
victimise an employee for making such a complaint or inquiry and
doing so may entitle the employee to relief under the FW Act's
adverse action provisions. Accordingly, employers should take
seriously any bullying complaints made by employees and undertake
appropriate investigations into such allegations. Investigations
should be transparent and impartial, and any subsequent action
should demonstrate procedural fairness towards all relevant
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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