Employers should take notice that they may face prosecution
under state Health and Safety laws as well as under Fair Work's
anti-bullying jurisdiction for encouraging or participating in
bullying in the workplace and thereby breaching their duty to
provide a safe workplace for employees.
A Victorian employer was recently convicted and fined $12,500
for contravening state Workplace Heath and Safety laws by
encouraging bullying of a young apprentice. The prosecution is
unusual in this circumstance as these type of matters would usually
be dealt with under Fair Work's jurisdiction.
The apprentice worked in the employer's construction company
and was the subject of systemic and deliberate abuse. The abuse
included having hot drill pieces held to his skin, sandpaper
scraped on his face and a rag which was drenched in methylated
spirits was held over his mouth. The apprentice was also the
subject of continual verbal abuse. After working for the employer
the young apprentice suffered from sever trauma and developed
anxiety and depression.
The apprentice is reported to have told the Court that
""[he] would rather be burnt, bruised, assaulted,
drenched in glue, water, paint, weeks' old coffee and spat on
all over again than to relive a week of the psychological torment
[that he] endured".
The employer was convicted of the breach and fined $12,500 by
the Magistrate and was ordered to pay costs of $7,051.
Western Australian employers owe employees a statutory duty of
care to provide a safe work environment under section 19 of the
Occupational Safety and Health Act 1984 (OSH
Act). Section 19 has been considered to enshrine the
common law duty of care owed by employers to provide a safe work
environment which may include a duty or prevent systematic
Under the OSH Act, corporate employers can be convicted and
fined between $50,000 and $625,000 for breaches of the Act
depending on the seriousness of the breach and whether there has
been a prior conviction.
This case is a reminder that employers should ensure they comply
with workplace obligations under State and Federal law and
implement risk management policies.
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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An employee that refused a reasonable offer of settlement was ordered by the FWC to pay his ex-employer's legal costs.
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