What has happened?
This week, a Victorian employer was convicted of a criminal offence under WHS laws over the persistent serious bullying of an apprentice.
The apprentice suffered anxiety and depression after being subjected to physical, verbal and psychological bullying over a two year period. The bullying included:
- ripping the apprentice's shorts;
- holding a rag doused in methylated spirits over the apprentice's mouth and hot drill bits and screws to his bare skin;
- slapping the apprentice's leg with a piece of timber;
- smearing plaster across the apprentice's face and into his eye and ear;
- pinning the apprentice's arms from behind while another employee painted his face;
- regularly calling the apprentice derogatory names;
- questioning the apprentice about his sex life; and
- taking the apprentice's mobile phone and making inappropriate sexual comments to a female friend of his using his social media account.
Wayne Allan Dennert, the employer who ran Quality Carpentry and Building Maintenance, was fined $12,500 (of a maximum $1,075,050) and ordered to pay costs of just under $800, when the Geelong Magistrates' Court found that he failed to:
- provide a safe system of work, so far as was reasonably practicable; and
- provide information, instruction, training and supervision to its employees in relation to workplace bullying.
What does it mean?
While we are seeing more successful applications in the 'anti-bullying' jurisdiction of the Fair Work Commission, it is unusual for an organisation (or workers within an organisation) to be prosecuted under WHS laws for bullying. This conviction is only one of a handful of criminal convictions in Australia under WHS laws for bullying at the workplace.
This case confirms that WHS regulators will prosecute businesses for bullying in the workplace (and potentially individuals), particularly where a business has developed a culture where bullying is tolerated, and Courts will convict.
Why is it important?
A breach of the WHS legislation is a criminal offence, and businesses can be fined up to $3,000,000 in states and territories that have harmonised WHS regimes (or up to $1,075,050 per charge in Victoria and $625,000 in WA).
Individuals (ie, officers and workers) can also be prosecuted for breaches of their own personal obligations. Officers who do not exercise due diligence to ensure that their business complies with its WHS obligations face a maximum fine of up to $600,000 and/or up to five years imprisonment. Similarly, workers can also be fined up to $300,000 and/or imprisoned for up to five years. These personal fines and penalties apply in the regimes which have harmonised their WHS regimes – in Victoria and WA (which have not yet harmonised) the fines and penalties are slightly different.
It is also worth noting that there are special laws in Victoria which separately make it a criminal offence to stalk a person. These laws were amended in 2011 to include acts of bullying – including being threatening, abusive or offensive to the victim with the intention of causing harm. These amendments are known as Brodie's law, after Brodie Panlock who tragically committed suicide after being bullied in the workplace. However, these provisions are targeted at the bullies, rather than the employer.
What should you do?
The best way to minimise any potential exposure under WHS laws is to treat and manage bullying like any other WHS risk in your business by applying the methodology required to assess and manage WHS risks. This means that:
- Identity the hazard - you conduct a risk assessment to identify whether bullying is a 'hazard' at your workplace – generally bullying will always be a potential 'hazard' in the workplace
- Identify consequences of the hazard - you assess the risks associated with the hazard - eg, absenteeism, anxiety and depression of staff subjected to bullying
- Put in place measures to control the hazard - you consider the appropriate control measures that could be put in place to minimise the risk – eg, train staff that bullying is unacceptable, introduce and communicate a bullying policy, provide a mechanism for staff to raise concerns about bullying, have a process for investigating bullying complaints etc
- Monitor and review your control of the hazard - monitor and periodically review the control measures you have put in place to assess whether they are working – if bullying is endemic in your organisation the control measures are not effective (ie, there is a culture in which bullying is acceptable which needs to be addressed), if concerns about bullying conduct are not being raised through the complaints mechanism the control measures are not effective (eg, staff may not be aware of the complaints mechanism or confident that a concern they raise will be addressed).
The above is a good starting point for your business to demonstrate it is taking steps to ensure the health and safety of its workers and others, 'so far as is reasonably practicable'.
Want more information?
The Magistrates' decision is not currently available.
However, information released by SafeWork Victoria is available here http://www.worksafenews.com.au/component/k2/item/502-geelong-builder-fined-$12,500-for-bullying-teen-apprentice.html (WorkSafe Victoria media release) and here Wayne Allan Dennert (WorkSafe Victoria prosecution result summaries).