A recent case of workplace bullying in Victoria, which traditionally would have been heard at Fair Work Australia, was instead heard by a Magistrate where the employer was prosecuted under state WHS legislation.
The employer, in the construction industry, was convicted and fined $12,500 for contravening WHS laws by encouraging bullying of a young apprentice.
The apprentice was the subject of systemic and deliberate abuse, including having hot drill pieces held to his skin, sandpaper scraped on his face and a rag which was drenched in methylated spirits was held over his mouth.
The apprentice was subjected to continual verbal abuse and developed anxiety and depression having suffered severe trauma.
The apprentice told the Court he "would rather be burnt, bruised, assaulted, drenched in glue, water, paint, weeks' old coffee and spat on all over again than to relive a week of the psychological torment [he] endured”.
The employer was convicted and fined $12,500 for the breach, and was ordered to pay costs of $7,051.
Employers have been reminded that bullying is an issue of occupational health and safety. In Western Australian employers owe employees a statutory duty of care to provide a safe work environment under section 19 of the Occupational Safety and Health Act 1984 (OSH Act). Section 19 has been considered to enshrine the common law duty of care owed by employers to provide a safe work environment which may include a duty or prevent systematic bullying. Under the OSH Act, corporate employers can be convicted and fined between $50,000 and $625,000, depending on the seriousness of the breach and whether there has been a prior conviction.
Employers can be prosecuted under state laws as well as under Fair Work's anti-bullying jurisdiction for encouraging or participating in bullying in the workplace. The employer has a duty to provide a safe workplace for employees.
By Mark Abernethy
Employers have been reminded that bullying is not simply a workplace guideline, it is a common law duty of care to employees. Employers should implement bullying risk management policies and ensure they comply with state and federal workplace obligations.