Last week, State Parliament proposed new legislation, 'Brodie's Law', to make it clear that serious bullying is a crime carrying a penalty of up to 10 years.
The Crimes Amendment (Bullying) Bill 2011 (Bill) proposed to amend the stalking provisions under the Crimes Act 1958 (Vic) to extend the crime of stalking to include behaviour that amounts to serious bullying. The introduction of the Bill is a response to the Café Vamp case in which WorkSafe Victoria successfully prosecuted the employer and three employees under the Occupational Health and Safety Act 2004 (Vic) (OHS Act) for the systematic bullying of another employee, Brodie Panlock, causing her to commit suicide.
Traditionally, liability for bullying in the workplace has been dealt with under the OHS Act. The new legislation will provide protection against bullying in many circumstances and will not be limited to the workplace (unlike the obligations under the OHS Act). However, employers and employees will need to be aware that the new laws will extend to serious cases of workplace bullying in addition to existing obligations under the OHS Act.
The existing crime of stalking provides that a person stalks another if they engage in a course of conduct with the intention of causing physical or mental harm to the victim, or with the intention of arousing the apprehension of fear in the victim. The Bill will amend the existing stalking provisions under the Crimes Act 1958 (Vic) in the following ways:
- to clarify that threats and abusive and offensive words or acts may form part of the course of bullying conduct;
- the description of 'course of conduct' is to include any conduct that could reasonably be expected to cause the victim to physically harm themselves;
- the fault element of stalking is to include the intention to cause the victim to physically harm themselves; and
- mental harm will expressly include psychological harm and causing a victim to engage in suicidal thoughts.
Whilst the Bill does not specifically define 'bullying' or 'serious bullying', it does make it clear that a person can apply for an intervention order against another person, if that other person engages in the following type of behaviour:
- makes threats or uses abusive or offensive words in the presence of the victim;
- performs abusive or offensive acts in the presence of the victim; or
- directs abusive or offensive acts towards the victim.
The above type of behaviour commonly falls within the spectrum of what can amount to bullying in the workplace.
For employers, the new laws have the effect of, once again, putting the spotlight on bullying behaviour, including in the workplace. This may mean that there will be a spike in allegations of bullying and employees may readily use the protection of an intervention order against other employees who are bullying them. If this does happen, employers are going to have to act carefully in response to such allegations and any intervention orders made.
Employers can manage the risks associated with workplace bullying by having in place up to date policies on appropriate workplace behaviour and educating staff on appropriate workplace behaviour and making clear the consequences for employees if they engage in bullying conduct.