Work Place Bullying: An Extreme Case Perhaps?
Thursday 23 June 2016 @ 2.29 p.m. | Crime | Industrial Law | Legal Research | Torts, Damages & Civil Liability
The issue of workplace bullying and court proceedings relating to it has become more common in recent times with the advent of harmonised Work Health and Safety Laws (WHS Laws) and the ability to also take action under the Fair Work legislation. However, a recent Victorian Magistrates Court Case reported in the Geelong Advertiser, which resulted in the criminal conviction of a building employer for the persistent and serious bullying of an apprentice under the Victorian WHS Laws (Victoria is yet to be "harmonised" (bought into line with the National WHS Laws)) shows the need for such laws to be made even more nationally consistent and easier for affected employees to access.
Background to the Case
The case, heard in the Geelong Magistrates Court (as reported by the Geelong Advertiser on 5 June 2016), involved a teenaged apprentice who had suffered, at various times during the course of his two years of employment, bullying inflicted by his employer ("owner/boss")involving:
- having hot drill bits held on his skin;
- his face being sandpapered;
- a metho-doused rag held over his mouth; and
- being pinned down and painted.
The owner/boss of the building business admitted to having taken the apprentice’s phone and posting a sexually explicit comment on a female friend’s Facebook page and encouraging an employee to put a live mouse down the apprentice’s shirt, spit on him and put liquid nails in his hair.
The owner/boss was also accused of having, ". . . belittled the apprentice", who began working for him at age 16, by asking him whether he had been the subject of child abuse using derisive and abusive language to do so. As a result, the apprentice claimed in the Magistrates Court, that, even after a year of no longer be employed by the owner/boss: ". . . he still barely slept replaying the trauma" and was constantly reliving the trauma inflicted on him.
Claims and Counter Claims
The Geelong Advertiser also reports, that WorkSafe prosecutor Olivia Barnes indicated that the apprentice admitted to participating in banter and retaliations when egged on by the owner/boss because he felt he could not complain or appear upset because it would give the owner/boss more cause to harass him. Ms Barnes also indicated that after months of dreading going to work, the apprentice quit and went straight to WorkSafe to report the bullying. Ms Barnes also indicated that:
“[the Owner/Boss] failed to produce any evidence of policies, information, instruction and training on workplace bullying and advised that none existed...He had an obligation to proactively recognise and act on workplace bullying and to demonstrate positive behaviour...It was reasonably practicable for him to regulate his own behaviour and that of his employees to stop engaging in such conduct.”
Counsel for the owner/boss indicated her client's deep remorse and “deep sense of shame” and argued her client had suffered similarly during his own apprenticeship and so considered his behaviour as "something to be laughed off” and that the “. . . blokey culture [was] completely normalised”.
The Verdict of the Case
The owner/boss, it is reported, pleaded guilty to ". . . failing to provide a safe working environment and was fined $12,500 and more than $700 in costs."
The Geelong Magistrates' Court found that the employer had failed to provide:
- a safe system of work, so far as was reasonably practicable to do so; and also
- information, instruction, training and supervision to its employees in relation to workplace bullying.
The Magistrate, Mr John Lesser, is reported as saying that the apprentice couldn’t have had a worst start to working life and that it: “. . . beggars belief . . . that [the owner/boss] didn’t realise how destructive his behaviour was and he had to be made an example of."
Comments and Reaction
The Geelong Advertiser reports WorkSafe Health and Safety executive director Marnie Williams as saying the owner/bosses was:
“. . . appalling" and “No employee should have to suffer such cruel, vicious and repeated behaviour at work, particularly a young man just starting his working life, . . . Because of their inexperience, young workers are particularly vulnerable to psychological and physical risks in the workplace.”
Reporting on the case, Minter Ellison state that:
"This case confirms that WHS regulators will prosecute businesses (and potentially individuals) for bullying in the workplace, particularly where a business has developed a culture where bullying is tolerated, and the courts will convict."
Minter Ellison also indicates in their report that a breach of the WHS Laws is "a criminal offence and significant penalties apply" saying that:
"In states and territories with harmonised WHS regimes businesses can be fined up to $3,000,000. Individuals can also be prosecuted for breaching their personal obligations. Officers who do not exercise due diligence to ensure that their business complies with its WHS obligations face a maximum fine of $600,000 and/or up to five years imprisonment. Similarly, workers can be fined up to $300,000 and/or imprisoned for up to five years. In WA and Victoria (which have not yet harmonised) fines and penalties differ slightly."
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