Workplace bullying & harassment in Victoria

Recently, there have been some landmark decisions in Australian bullying litigation. The media have also paid particular attention to bullying and harassment in not only the workplace, including incidents involving members of the Australian Defence Force, but also on cyber-bullying through social media and school responsibility for bullying of children by their peers.

Unfortunately, there is no single national anti-bullying statute and no definitive nationally-acceptable legal characterisation of what constitutes bullying. In respect of the workplace in Victoria, legal responses to bullying are articulation of industry codes such as the WorkSafe Victoria 2005 Guide to Managing OHS in Community Services and the Occupational Health & Safety Act 2004. The prevention and regulation of workplace bullying and harassment is mainly covered by occupational health and safety law, however legal remedies in Australia typically include action under:

Anti-Discrimination Legislation;
Common Law (eg for physical and/or psychological; injury);
Constructive Dismissal aspect of Industrial Relations Law;
Occupational Health & Safety Law;
Workers Compensation schemes; and
Criminal Law.

Bullying is generally defined as repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety. It is irrelevant whether the person bullying and harassing intended to do so.

New Victorian laws to combat bullying

Victoria’s impending workplace bullying laws are set to become a lot tougher with the welcome addition of the Crimes Amendment (Bullying) Bill 2011 (‘the Bill’). The Bill adds definitions to the Crimes Act 1958, the Stalking Intervention Orders Act 2008 and the Personal Safety Intervention Orders Act 2010. The Bill targets four categories:

Threats and abusive and offensive words or acts may form part of the course of bullying conduct;
The description of a course of conduct will include any conduct that could reasonably be expected to cause the victim to physically harm themselves;
The requisite intention for stalking includes the intention to cause a person to harm themselves; and
Mental harm includes psychological harm and causing a victim to have suicidal thoughts.

Essentially the Bill makes it clear that causing physical or mental harm, including causing a person to engage in self-harm or have suicidal thoughts could result in criminal charges. This is intended to address circumstances such as the Café Vamp case where a person is bullied to such an extent that they later commit suicide. The Café Vamp case related to the severe and prolonged workplace bullying of a young waitress who later committed suicide.

Penalties applicable to the Bill

The extension of the Bill to the criminal law will apply in all environments, including workplaces and impose penalties of up to 10 years imprisonment on individuals who engage in serious workplace bullying. Such a penalty is a significant step-up from the maximum penalty under Victoria’s Occupational Health & Safety Act 2004 which provided for the imposition of monetary penalties as was the outcome in the Café Vamp case. The perpetrators of the bullying in the Café Vamp case were all convicted of offences under Victoria’s Occupational Health & Safety Act 2004 ranging from fines of between $30,000 and $45,000 for three individuals, including the owner and the business being fined $220,000.

Cyber-bullying

As has been identified, workplace bullying and harassment can cover a number of behaviours and actions and extend beyond the physical confines of the employers premises. Given the current technology via the internet and other social media platforms, including Facebook and twitter, and the potential to use technology to bully a person, it is foreseeable that offences will occur where either the victim or the conduct is outside of Victoria. Cyber-bullying is a new challenge that employers face as it can involve:

Anonymity, which leads to employees feeling less accountable for their actions;
Geographically used across multiple jurisdictions;
Provide greater and longer lasting impact as it can be seen by a wider audience and people in multiple locations; and
Permanence, as online comments can potentially linger forever.

The offences contained within the Bill will apply to circumstances where either:

The victim was in Victoria (regardless of where the conduct occurred); or
The conduct was in Victoria (regardless of where the victim was).

Obligations of an employer to bullying and harassment

Occupational health and safety law states that an employer has an obligation to, as far as practicable, provide employees with a working environment that is safe and free from risks to the workers’ health. Workplace bullying and harassment is not consistent with a safe working environment or a working environment that is free from risk. There are significant legal and reputational costs for businesses that either fail to take steps to prevent inappropriate workplace behaviour or fail to respond appropriately when such behaviour does occur. Such failures can give rise to liability under OHS, workers’ compensation and anti-discrimination legislation and general employment law.

Businesses should be aware that bullying and harassment can include obvious and overt behaviours such as:

Verbal abuse;
Assault;
Spreading rumours about someone;
Constant name calling;
Practical jokes; and
Sexual harassment;

Bullying and harassment can also include more subtle behaviours such as:

Constant unjustified criticism or complaints;
Constant threats to sack or demote;
Excluding someone from workplace activities;
Inconsistent and arbitrary enforcement of rules;
Setting unreasonable timelines;
Deliberately changing work arrangements in order to inconvenience someone;
Setting tasks that are unreasonable;
Excessive scrutiny of work performance;
Withholding information or tools required to perform work; and
Taking credit for another employees work and failing to acknowledge that employee.

What do these changes mean for an employer?

Every employer has a duty to ensure that the working environment it provides its workforce is safe and does not pose a risk to the health and safety of its employees. OHS legislation will continue to be the primary tool for prosecuting and punishing bullying cases. The extension of the Bill to criminal law implications is intended to provide another response where bullying and harassment and their consequences are extremely serious, such as those in the Café Vamp case.

Additionally, the changes are a timely reminder for employers to:

Regularly review their OHS and HR Policies to assess whether they are achieving compliance with their obligations with respect to workplace bullying and harassment;
Consider whether there are any new measures they should be taking given recent cases and reporting in the media;
Ensure that they have systems in place to adequately deal with and minimise harm and limit their exposure to legal and reputational risk should bullying and harassment occur in their workplace;
Educate their workplace in relation to bullying and harassment and regularly informing employees of their own personal obligation and ensure policies and systems are in place to address them should they arise; and
Provide a visible commitment to education programs that it will implement and enforce policies.