1 August 2019

First workplace bullying prosecution in South Australia

This bullying conviction in South Australia could have implications for health and safety practices in New Zealand.
New Zealand Employment and HR
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The first conviction in South Australia for bullying could have important implications for health and safety practices in New Zealand.

Charges were brought against two employees, Jeffrey Rowe and Luke Chenoweth, and their employer, Tad-Mar Electrical Pty Ltd, in respect of bullying of a 19 year old apprentice. Rowe pleaded guilty to a charge that he had engaged in conduct that exposed an individual to a risk of death or serious injury or illness, and that he was reckless as to that risk. The charges against the other defendants are still on foot.

The details of the bullying was particularly egregious. During a lunch break, Chenoweth squirted a flammable liquid onto the boot and shirt of the apprentice, Austin Courtney, and ignited the flammable liquid. Rowe, the site supervisor, took no steps to stop Chenoweth, and himself squirted more flammable liquid onto Courtney's shirt while the shirt was burning. Fortunately Courtney was not seriously injured.

In his sentencing submissions, Rowe's lawyer asserted that the incident was a case of "high jinx gone wrong", but accepted that it "proceeded beyond what is reasonable and acceptable".

The court remarked that:

"with the exception of the Defendant also once squirting fluid onto Courtney's shirt, the primary allegation against the Defendant was that he failed to intervene to stop the actions of Chenoweth."

The court noted that both the acts and the omissions of Rowe were serious. Rowe was convicted, and fined $12,000.

What does this mean for you?

South Australia's health and safety legislation, the Work Health and Safety Act 2012, is based on Australia's Model Work Health and Safety Act. This is the same legislation that New Zealand used as the basis for our Health and Safety at Work Act 2015. The similarity in legislation means that New Zealand courts are likely to refer to Australian cases when interpreting any provision of our Act.

This case serves as an important reminder that health and safety laws extend beyond the actions that someone takes, and also include an obligation to ensure that a lack of action does not adversely affect the health and safety of other persons.

Bullying should be treated as any other workplace risk, and measures should be put in place to eliminate the risk, to ensure bullying does not occur in the workplace. In addition, all workers should be trained to ensure they know how and when to intervene if it does.

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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