When managing bullying complaints, these days employers tend to focus on the risk that a complainant will make an application to the Fair Work Commission for an order to stop bullying, or make a general protections application alleging victimisation for making the complaint.
However, it is important that employers remember that because workplace bullying is a serious health and safety issue, it can also be dealt with under a wide variety of laws.
The following cases demonstrate how these other laws can affect employers that fail to adequately deal with workplace bullying risks, and also those employees that actively engage in workplace bullying.
In Eaton V Tricare (Country) Pty Ltd  QCA 139, Robyn Eaton was an administrative worker at a nursing home operated by TriCare (Country) Pty Ltd.
Ms Eaton developed depression and anxiety following her “consistently excessive” workload which made it difficult to cope with “harassing and belittling” conduct by her supervising manager. This conduct included verbal abuse, with Ms Eaton being told by her manager on one occasion, “I’ve never met anybody so stupid as you”.
Ms Eaton claimed that her employer was vicariously negligent for the actions of her supervisor. The Queensland Court of Appeal agreed, finding that the employer owed Ms Eaton a duty to take reasonable care to prevent Ms Eaton from developing a psychiatric injury at work, which it breached through the manager’s conduct. The Court of Appeal found there was an “evident deterioration” in Ms Eaton’s psychological state while working under her manager, and that her employer should have been aware that Ms Eaton was exhibiting a particular vulnerability to developing a psychiatric injury if the manager’s behaviour continued.
The Court of Appeal awarded Ms Eaton $435,500 in damages. The employer was also ordered to pay her legal costs.
In November 2015, in the matter of R v Clare (case E13989755), the Latrobe Valley Magistrates’ Court sentenced Sean Clare, an employee at Woolworths’ Moe store, to six months’ imprisonment after he pleaded guilty to two charges of stalking in relation to the serious bullying of two co-workers between August 2010 and August 2013.
Mr Clare was charged under a provision of the Crimes Act 1958 (Vic), known as ‘Brodie’s Law’, which was introduced in 2011 to criminalise serious cases of bullying. For information on ‘Brodie’s Law’, see our previous alert here.
Mr Clare was charged for aggressive, hostile and abusive behaviour to his night shift manager, who was female, and another employee. Mr Clare refused to perform simple tasks, he once told his manager that “if you were a bloke, you would’ve had your head bashed in by now because people don’t like you, they don’t like working with you”, and he also spread rumours that his manager was having an affair.
In sentencing Mr Clare, Magistrate Holzer stated that Mr Clare’s “systematic bullying” had significantly impacted the lives of his victims, and required “the strongest possible condemnation by a court”. Magistrate Holzer was also critical of Woolworths’ handling of the matter, stating that it failed to provide a safe workplace and that he was surprised that the company was not more proactive in addressing the bullying allegations.
Occupational health and safety
This year, the Geelong Magistrates Court fined Wayne Allan Dennert, trading as Quality Carpentry and Building Maintenance, $12,500 under the Occupational Health and Safety Act 2004 (Vic) after he pleaded guilty to workplace bullying.
In April 2015, an apprentice made a complaint to WorkSafe that he had been bullied by Mr Dennert since starting his apprenticeship in April 2013. The apprentice complained of verbal, physical and psychological bullying by Mr Dennert and employees that Mr Dennert encouraged. The apprentice complained of having a mouse dropped down his shirt, and being spat on by another employee. Mr Dennert also held a rag doused with methylated spirits over the apprentice’s mouth and held hot drill saw bits and baton screws on the apprentice’s skin.
WorkSafe prosecuted Mr Dennert for failing to provide a safe system of work, and other failures to comply with occupational health and safety lawswith respect to workplace bullying. The prosecution was successful, and the Geelong Magistrates Court ordered Mr Dennert, as the apprentice’s employer, to pay a $12,500 fine and court costs.
Lessons for employers
As noted by the Queensland Court of Appeal in Eaton v TriCare, employers do not have a legal responsibility to provide “a happy workplace or one in which their productivity might have been enhanced by temperate and polite behaviour from those in managerial positions”. However, employers still have a duty to provide a safe working environment, and to take reasonable care to avoid exposing their employees to foreseeable harm, risk and injury.
Employers should ensure that they have in place and follow practical workplace bullying policies. In addition to promptly dealing with workplace bullying complaints if and when they arise, employers should also proactively identify and eliminate behaviour that has the potential to qualify as workplace bullying, or which may otherwise affect a worker’s health and safety.