Monday, 25 July 2016

No room for bullies in the workplace

Employers have an obligation, so far as its reasonable practicable, to ensure that the workplace is free from risks to health and safety. This obligation is codified under State based occupational health and safety legislation, as well as in the Fair Work Act (Cth). A failure to meet such obligations can result, in serious cases, in a criminal conviction, substantial fines and/or awards of compensation.

Recent cases in the differing jurisdictions highlight that the treatment of bullies in the workplace is not tolerated by the judiciary, with serious results.

Bullying can result in substantial liability under Safety and Workers’ Compensation Laws

Under the Occupational Health and Safety Act 2004 (Vic) (the Act), all employers must “so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health”. It is well accepted that “health” pertains to both physical and mental health.

In June this year, a director (Dennert) was convicted and fined in the Magistrates’ Court for breaches of the Act arising from engaging in the bullying of an apprentice.

Dennert ran a carpentry business, and was the apprentice’s supervisor. Over the course of more than 2 years, the teenage apprentice was subjected to verbal, psychological and physical bullying by Dennert (and other employees who were encouraged by Dennert) which included holding a rag doused in methylated spirits over his mouth, smearing plaster across his face and regularly calling him derogatory names and questioning him about his sex life.

This, together with other disturbing incidents, caused the apprentice to suffer anxiety, insomnia and depression. The apprentice made a complaint to WorkSafe, who prosecuted Dennert.

Dennert ultimately pleaded guilty to breaches of the Act in failing to provide safe systems of work or provide instruction/supervision in relation to workplace bullying and was fined $12,500 and $800 in costs.

This follows a case in Queensland where an employer was found vicariously liable for the bullying of an employee and ordered to pay $436,000 in damages for psychiatric injury, which further emphasises the potential liability of employers for failing to ensure bullying behaviour is minimised in the workplace.

Bullying can be a valid reason under the Fair Work Act 2009 (Cth)

In a recent case, an employer (Karingal Inc) engaged an external investigator to look into bullying complaints made about a manager (Carroll).

From the outcome of the report, Karingal Inc dismissed Caroll on the basis that he was “engaging in serious and sustained bullying of staff under his management and supervision, which adversely affected their health, safety and welfare”. Karingal Inc asserted that this behaviour was in breach of its Code of Conduct, Work Health and Safety Policy and Bullying and Harassment Policy (collectively the Policies).

The report found that some of the forms of the bullying engaged by Carroll were:

  • Raising his voice in an “aggressive and condescending” manner
  • Commented that a worker spoke “Checklish” – in reference to an employee being from Czech Republic
  • The micromanaging of employees through the use of 4 – 5 different spreadsheets used as a reporting tool and “his otherwise controlling management style”

Consequently, employees felt belittled, intimidated, inferior and offended. The Commission agreed with Karingal Inc, and that whilst Carroll “may be well-intentioned he appears unaware of the effects his behaviour had on the employees who reported to him”. Ultimately, the Commissioner was “satisfied that the cumulative effect of his conduct and behaviours was one of significant and systematic micromanaging” and that his conduct amounted to a valid reason for his termination.

What does this mean for employers?

Bullying in the workplace is a serious issue which cannot be ignored by employers.

An employer has a responsibility to manage and minimise risks in the workplace, which may include educating employees about appropriate workplace behaviour and addressing bullying conduct with proportionate disciplinary action.

HR Legal can assist in preparing policies on appropriate workplace conduct, conducting training in these policies and undertaking investigations into bullying complaints. Further, HR Legal runs Moot Courts, which are hypothetical WorkSafe prosecutions in a mock court setting. They can be tailored to your workplace regarding bullying or to a specific safety event.

HR Legal is running a free seminar series commencing in August: ‘”Stop bullying me” – What to do when an employee uses the “B” word”. Click here for more information and to reserve your place.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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