The Melbourne Magistrate’s Court has sent a strong message against bullying in the workplace after convicting and fining a company and four individuals responsible for workplace bullying that ultimately led to the suicide of 19-year-old Brodie Panlock in 2006. Employment Relations Partner, Stephanie Vass, and Associate, Justin Le Blond examine the case.
Bullying is not defined by statute as an offence, nor is there a general legislative prohibition of workplace harassment. Nevertheless, employers who do not take precautions to ensure the physical and psychological wellbeing of employees can be found liable for any injuries suffered. The Guidance Note on the Prevention of Bullying and Violence at Work prepared WorkSafe Victoria describes the act of bullying as “repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.”
Workplace bullying is evidenced by sustained unreasonable behaviour rather than an isolated incident. The types of behaviour indicative of workplace bullying include, but are not limited to, verbal abuse, exclusion, intimidation, unfair rostering, deliberately withholding information and assigning impossible or meaningless tasks.
Prolonged workplace bullying creates a culture of hostility that not only impacts negatively on the welfare of employees but also the productivity rates and resources of the workplace. Employers can be held vicariously liable for the actions of employees or agents who engage in bullying behaviour if it occurs within the scope of their employment. In order to avoid liability for workplace bullying, an employer must prove that all reasonable steps were taken to prevent it. Ignorance of the harassment committed by employees is not a defence. Because there is no discrete act dealing with bullying, complaints of bullying at this point in time are actioned by employees in various courts and tribunals by claiming breaches of the relevant health and safety legislation in each state.
MAP Foundation, trading as Café Vamp in Hawthorn, was fined $220,000 and the four individual defendants a total of $115,000 for breaches of the Occupational Health and Safety Act 2004 (OHS Act) which Magistrate Lauritsen described as “persistent and vicious.” The four defendants, comprising the director of MAP Foundation, the café manager and two former employees pleaded guilty to the offences and received discounted penalties for exhibiting remorse. T
he culture of Café Vamp in this case was rife with harassment. According to Coroner Peter White, Ms Panlock was treated in an “extremely aggressive and intimidating matter” and was subject to both physical and emotional bullying between 2005 and her suicide in September 2006. Stan Krpan, acting executive director of WorkSafe Victoria said “the offending in this case was of the most serious nature… the culpability was high, the culture at this workplace was vicious and was not acceptable.”
He went on to say “failing to set and maintain standards in this area can destroy employment relationships and irretrievably undermine individuals and the business.” As the case of Ms Panlock demonstrates, by the time the issue has been raised retrospectively it may already be too late for the victims of workplace bullying.
MAP Foundation was found to be in breach of section 21(2a) of the OHS Act, which requires an employer to provide for or maintain plant or systems of work that are, so far as is reasonably foreseeable, a safe working environment for employees. Its director Marc Da Cruz was also found liable under this section, as well as sections 21(2e) and 144. Section 21(2e) required Mr Da Cruz to provide information, instruction training or supervision to employees as is necessary to ensure workplace safety and employee health, while section 144 extended his liability as an officer of the offending body corporate. He was fined a total of $30,000.
The manager of Café Vamp Nicholas Smallwood and former employees Rhys MacAlpine and Gabriel Toomey were found to have breached section 25 of the OHS Act. Under the section, employees are required to take reasonable care for the safety of persons who may be affected by their acts or omissions at a workplace. They were fined $45,000, $30,000 and $10,000 respectively.
This recent decision emphasises the need for employers to take all necessary steps to ensure workplace bullying does not occur or otherwise face prosecution, substantial penalties and public ridicule. Employers are reminded to promptly address any claims of workplace bullying or harassment if and when it arises. This case demonstrates the importance of taking complaints of bullying seriously and implementing processes to ensure bullying does not occur. Prevention must be at the forefront of an employer’s mind at all times.