Victoria's new laws to deal with workplace bullying, dubbed "Brodie's law" after a teenage victim, have been introduced into State Parliament.
The Victorian Government has tried to avoid the conceptual problems of defining workplace bullying in the Crimes Amendment (Bullying) Bill 2011 as a new and specific offence. Instead, it extends the definition of the pre-existing offence of stalking by expanding the definition of that offence to pick up the type of behaviours that are typical of workplace bullying.
Unlike the current laws dealing with workplace bullying (Occupational Health & Safety Act 2004 (Vic)) this is not directed at employers, but at the employees engaged in bullying. Nonetheless, Victorian employers will still need to understand the new laws and, in some cases, deal with the practical problems arising from them.
How will these new laws work?
Currently stalking is defined with two elements in the Crimes Act 1958 (Vic).
First, there are the behaviours, such as following the victim, keeping them under surveillance, or interfering with their property. Some of these behaviours would already be considered as bullying if they happened in the workplace.
The second element is the intention of the person doing those things – are they being done "with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any other person"?
The Bill expands these behaviours to include:
- making threats to the victim;
- 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;
- acting in any other way that could reasonably be expected to cause a victim to engage in self-harm
It also changes the intention to include self-harm, given the expanded behaviours, along with physical and mental harm.
What are the practical implications of treating workplace bullying as a type of stalking?
The first, and most obvious, is that committing the offence of stalking can attract jail time of up to ten years. While this is a serious penalty, it only works as a deterrent if potential bullies are actually aware of it.
The second is that a victim of stalking can get an intervention order under the Stalking Intervention Orders Act 2008 (Vic), even if the stalker has not yet been convicted of a criminal offence.
All that's needed is for a court to be satisfied on the balance of probabilities that the respondent has stalked another person and is likely to continue to do so or to do so again. Intervention orders can, for example, order the stalker not to approach the victim's workplace or contact the victim.
The third is more of a practical problem for the Crown if it prosecutes someone for stalking. The Crimes Act gives a defence to the accused if he or she can prove that the course of conduct was engaged in without malice:
- in the normal course of a lawful business, trade, profession or enterprise; or
- for the purpose of an industrial dispute; or
- for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.
Is this an issue for employers?
Yes and no.
Theoretically, even before these proposed amendments, certain types of workplace bullying already fell within the definition of stalking. In one sense, therefore, this doesn't change the situation much – employers already had the potential problem of, for example, dealing with keeping apart at work a victim and stalker subject to an intervention order.
In another sense, this is clearly an important change. More types of workplace bullying are now criminalised, and public awareness of bullying issues will certainly have been increased by the publicity surrounding this Bill. We can therefore expect a rise in complaints and the number of victims coming forward, and not just in Victoria, as other States and Territories have stalking laws that could cover at least some types of workplace bullying.
What should Victorian employers do now?
The easiest way to minimise the chance of dealing with the problems noted above is to take workplace bullying seriously. All employers, wherever they are, should always ensure their anti-bullying policies and procedures are effective and communicated to staff on a regular basis. Certainly for Victorian employers these amendments, if passed, will add some weight to their warnings.
If a victim of workplace bullying does seek an Intervention Order against another employee, employers will need to be particularly careful. There may be instances where a termination arising from bullying could be challenged in an unfair dismissal case.