Bullying conviction under WHS laws a salutary warning to businesses

by John Maguire15 Jun 2016
Last week’s criminal conviction of an employer for the persistent and serious bullying of an apprentice represents a stark warning for employers, according to partner with MinterEllison, Harriet Eager.

Wayne Allan Dennert was fined $12,500 by Geelong Magistrates Court under workplace health and safety (WHS) laws for bullying by him and other employees of an apprentice who suffered anxiety and depression as a result of his subjection to physical, verbal and psychological abuse over a period of two years.

The case was unusual in that the employer was convicted under the workplace health and safety regime rather than the Fair Work Commission’s anti-bullying jurisdiction.
“While we’re seeing more successful applications in the anti-bullying jurisdiction of the Fair Work Commission, it’s unusual for a prosecution under WHS laws for bullying,” said Eager.

“This conviction is one of only a handful of criminal convictions in Australia under WHS laws for bullying in the workplace.”

The fact this case was unexpectedly prosecuted under WHS laws should serve as a reminder to employers that the consequences of bullying in the workplace can be extremely serious. In this case, bullying included ripping the apprentice’s shorts, holding a rag soaked in methylated spirits over his mouth and applying hot drill bits to his skin, along with derogatory name-calling.

“This case confirms that WHS regulators will prosecute businesses and potentially individuals for bullying in the workplace,” said Eager, “particularly where a business has developed a culture where bullying is tolerated. And it shows that courts will convict.

“Officers who do not exercise due diligence to ensure that their business complies with its WHS obligations face a maximum fine of up to $600,000 and/or up to five years in jail in jurisdictions with harmonised regimes. Workers can also be fined up to $300,000 and/or imprisoned for up to five years.”
Eager added that employers can be on their guard against workplace bullying by treating it like any other WHS risk.

“A good starting point to demonstrate that your business is taking steps to ensure the health and safety of its workers and others, ‘so far as is reasonably practicable’, is being able to show that you have a bullying policy that has been communicated to staff, that you are training them that bullying is unacceptable, that you provide a mechanism for staff to raise concerns about bullying and that you have a process for investigating bullying complaints.”



  • by Philip Crowther 15/06/2016 1:00:35 PM

    Whilst the conviction of the employer under the WHS laws is good. The small fine for such actions seems inconsequential. What about charges for physical assault under criminal law?

  • by Bernie Althofer 15/06/2016 1:23:35 PM

    This case indicates some changes that are occurring regarding approaches towards penalties being imposed in relation to bullying and work health and safety. Whilst some may at this stage question the severity of the penalty imposed, others will believe it will send a warning to other businesses.

    Over the years there have been a number of decisions and findings made through various Courts, Commissions and Tribunals, as well as input from 'interested parties' regarding the physical and psychological impact of bullying, not to mention the financial impact. Some organisations may systems and processes in place to review those decisions and findings and then test internal controls as per the hierarchy of control to minimise potential exposures to their organisation or to their employees at all levels.

    It was interesting to note comments reportedly made by the target in this case that the psychological treatment was worse than the physical treatment. In terms of penalties, it may be that in future cases, there may be more consideration given towards the psychological damage caused during the assault; the long term impact of such psychological damage; whether the 'offender' should be charged under criminal law and not just work health and safety law; and what penalties are appropriate given the circumstances and context of each case.

    It is difficult to make judgements on specific cases. However, it does appear from reading various contributions made in discussion groups is that the psychological impact and scarring from bullying may last for numerous years. In at least contribution, there was an indication that the impact continued for at least 19 years. Making decisions about penalties may not be as easy as some would like to believe. It may be that this decision is a deterrent. However, learning and development programs need to reflect decisions such as this particularly when workplace bullying is being addressed.

    It appears that in some cases, prosecutions will occur and result in penalties being imposed, whereas in the past, this may have not have occurred. The decision may serve as 'fair warning' to let employers know that there is a prosecutorial risk involved with bullying, and that it could be damaging to individual and organisational reputations.

  • by HR Manager 15/06/2016 1:27:35 PM

    I agree with Philip, this isn't bullying it is criminal, and is Assault. He should have been prosecuted in the criminal courts and may have received some incarceration as well. this is appalling behaviour and if it is possible, and it may be,he also should face criminal prosecution so I would report it to the police as well. He has quite possibly damaged this kid for life I know if he was my son I would not be allowing anything less than criminal charges and they owe it to their son and other people that will follow in his tracks. Well you may say that the bullying has more success in the commission. In fact they do not have any power to punish at all and a lot of people end up leaving and the commissions response is that they are not there any more to be bullied and they don't have the power to prosecute the employer. they can only issue an order for it to stop. Unfortunately you have a very short time span in a company if you complain about anything because you would clearly not be welcome and psychological abuse lasts forever. WHS is the only place a prosecution should take place if it is psychological but if anything physical happens, Police immediately. People only take notice when they are fined and substantially or imprisoned as sad as that may be.

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