Australia: Employers Must Be Vigilant On Workplace Bullying

Enterprise - April 2010

A recent Victorian decision involving the bullying of a waitress by four employees and the prosecution by the employer, MAP Foundation, is an important reminder to employers that workplace bullying is not only bad people management, an occupational health and safety risk but can also create a range of other legal risks.

Brodie Panlock, an employee at Vamp Café, committed suicide after what was described as 'relentless bullying' by His Honour Magistrate Lauritsen in the Melbourne Magistrates Court. WorkSafe prosecuted the company, the employer and employees for breaches of duties under the Occupational Health and Safety Act 2004 (Victoria) ('the OHS Act').

The Court found the following charges laid were proven, convicted the men and fined them as follows:

  • MAP Foundation T/as Café Vamp as employer:
    Breach of s21(1)(a) of the OHS Act (breach of the duty to provide or maintain systems of work that are safe and without risks to health). Conviction received and fined $110,000.
  • Marc Da Cruz – Director of MAP Foundation P/L
    Breach of s21(1)(a) and s144 of the OHS Act (liability of officers of bodies corporate) Convicted and fined $15,000.
    Breach of s21(2e) (provision of information, instruction, training and supervision to prevent risk) and s144 for this breach. Convicted and fined $15,000.00.
  • Nicholas Smallwood – Manager of Café
    Breach of s25(1)(b) of the OHS Act (duty of an employee to take reasonable care for their actions to prevent risks of health and safety to other persons). Convicted and fined $45,000.
  • Rhys MacAlpine – Co-worker
    Breach of s25(1)(b) of the OHS Act. Convicted and fined $30,000.
  • Mr Gabriel Toomey – Co-worker
    Breach of s25(1)(b) of the OHS Act. Convicted and fined $10,000.

At the time of writing, it is understood that the parent's of Brodie Panlock are considering compensation claims against the company, the employer and the employees.

The bullying conduct included both physical acts against the employee and psychological bullying, including taunts.

The penalties ordered against each of the employees and the Employer are the most significant penalties ordered in relation to OHS breaches arising from workplace bullying.

While, in this case custodial sentences were not able to be ordered by the Court under the provisions of the OHS Act that the employer and employees were charged, section 32 of the OHS Act does provide for imprisonment in the event that a person has 'recklessly endangered persons at the workplace'.

It is also possible in circumstances of workplace bullying for charges of assault to be pursued by Police.

Bullying creates a range of legal risks

In addition to OHS breaches and potential criminal charges of assault there are a number of legal risks that can arise when bullying occurs in the workplace, including:

  • workers compensation claims in relation to the physical and psychological harm caused by bullying
  • discrimination claims if the conduct is in relation to prohibited ground such as gender, sexual preference or race
  • adverse action claims under the Fair Work Act if the conduct results in a detriment to a workplace right
  • termination of employment claims if the conduct causes a constructive dismissal
  • common law claims for damages, including for failing to take proper care of the employee's health and safety.

What should employers do?

  • Take preventative action before bullying occurs: publicly display anti-harassment and anti-bullying policies, ensure all workers are trained in appropriate workplace behavior and provide this training on an ongoing basis. Have a transparent conflict resolution procedure.
  • Perform regular risk assessments to monitor the health and safety of the workplace.
  • Claims of bullying or suspicions that bullying in the workplace is occurring should always be investigated, and if the allegations or suspicions are substantiated, appropriate action must be taken.
  • Workplace investigations should be fairly and independently undertaken by internal or external investigators who have the appropriate skills to deal with the allegations.
  • Managers should specifically be provided with appropriate training to deal with bullying behavior and workplace investigations.
  • Policies should be regularly reviewed and communicated to employees.
  • The employer should keep documentation of training, investigation outcomes and complaints in the event of a later claim or WorkSafe investigation.

Whilst the Panlock case is an extreme one, employers should be aware that bullying can happen in any workplace. Appropriate steps should be considered to reduce the risk of bullying occurring and how to manage such cases if they arise.

Not only is this appropriate for Employers to manage these risks, but it is an important step for managing the welfare of your employees, whether that includes training, policy development, workplace investigations or developing risk management strategies.

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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