- The proposed extension of the criminal law will apply to bullying in all environments, including workplaces.
- Under the new laws penalties of up to 10 years imprisonment may be imposed on individuals who engage in serious workplace bullying.
- Employers should remain vigilant in dealing with workplace bullying by periodically reviewing compliance, considering new control measures, ensuring effective risk management systems and educating employees.
Stories of bullying,1 whether it be bullying in our workplaces, our schools or our broader social networks, are on the rise. There is no doubt that in Victoria there has been a much greater focus on bullying by WorkSafe, the government,2 Unions3 and the media in recent times, particularly since the Café Vamp4 case.
Broadening of criminal law offences
Under legislation currently being considered by the Victorian Parliament,5 it is proposed that existing criminal laws dealing with ‘stalking’6 will be extended so as to apply in cases of serious bullying. More specifically, the Bill extends the definition of stalking so that a person stalks another person (the victim) if the offender engages in a course of conduct which includes:
- making threats to a person
- using abusive or offensive words to or in the presence of the victim
- performing abusive or offensive acts in the presence of the victim
- directing abusive or offensive acts towards the victim, and
- acting in a way that could reasonably be expected to cause physical or mental harm to the victim, including self-harm.
A person is only guilty of stalking if it can be established that they engaged in the stalking conduct and they did so with the intention:7
- to cause physical or mental harm to the victim, or
- of arousing apprehension or fear in the victim for their own safety or that of another person.
The Bill makes clear that causing physical or mental harm includes causing a person to engage in self-harm or have suicidal thoughts. This is intended to address circumstances (such as the Café Vamp case) where a person is bullied to such an extent that they later commit suicide.
The maximum penalty for a stalking offence is 10 years imprisonment. While the Victorian OHS Act currently provides for the imposition of significant monetary penalties (maximum penalty for an individual is over $200,000) this has been viewed by some as inadequate in cases where the victim suffers significant (and potentially irreparable) damage.
Where do the offences apply?
The legislation is drafted to apply to circumstances where either:
- the victim was in Victoria (regardless of where the conduct occurred), or
- the conduct was in Victoria (regardless of where the victim was).
Given current technology, in particular texting, email and social networking, and the potential to use technology to bully a person, it is foreseeable that offences will occur where either the victim or the conduct is outside of Victoria.
What do these changes mean for business?
We have seen in recent times the significant legal and reputational costs for business that either fail to take steps to prevent inappropriate workplace behaviour or fail to respond appropriately when such behaviour does occur. Such failures can give rise to liability under OHS, workers’ compensation and anti-discrimination legislation and general employment law.
Each employer has a duty to ensure that the working environment it provides is safe and does not pose a risk to the health and safety of its employees. In the Second Reading speech8 for the Bill, Victorian Attorney General Robert Clark indicated that OHS legislation is (and will continue to be) the primary tool for prosecuting and punishing bullying cases and that this extension of the criminal law is intended to provide another response where bullying and its consequences are ‘extremely serious’.
These proposed changes are a timely reminder for employers to:
- periodically review their policies and systems to assess whether they are achieving compliance with their obligations with respect to workplace bullying
- consider whether there are any new measures they should be taking given recent cases or current thinking in this area
- ensure they have systems in place to minimise harm (and their exposure to legal and reputational risk) should bullying occur in their workplace, and
- educate their workforces in relation to bullying (including employees’ personal obligations) and the policies and systems in place to address it.