The recent passing of the Crimes Amendment (Bullying) Act 2011 by the Victorian parliament introduces the possibility of up to 10 years imprisonment for workplace bullies. The Act amends the stalking provisions of the Crimes Act 1958 to make it clear that serious bullying may amount to stalking.
The amendments to the Crimes Act*:
- clarify that threats, using abusive and offensive words and performing or directing abusive and offensive acts towards a victim may constitute stalking;
- broaden the description of a ‘course of conduct’ to include any conduct that could reasonably be expected to cause a victim harm, including self harm;
- broaden the definition of mental harm to include psychological harm and causing the victim to engage in suicidal thoughts; and
- allow victims to apply for the protection of a stalking intervention order
The new provisions apply in addition to the current provisions of the OHS Act dealing with employers’ and employees’ obligations. However, they make it clear that in cases of serious bullying, the perpetrators may face up to 10 years imprisonment.
The Act was introduced to Parliament in response to the 2006 death of Brodie Panlock, a 19 year old Melbourne waitress who committed suicide after being persistently and viciously bullied while working at a café in Melbourne.
During her employment, Ms Panlock was subjected to severe bullying by her co-workers including insults, unwarranted personal criticism, taunts, name-calling and offensive and degrading sexual comments. Ms Panlock’s co-workers repeatedly bullied her physically, including throwing food at her, kicking, spitting and slapping her and damaging her possessions and clothes in addition to gossiping about her and excluding her from both social and workplace activities.
Following Ms Panlock’s death, Worksafe Victoria commenced five prosecutions under the provisions of the Occupational Health and Safety Act 2004 dealing with:
- employers’ obligation to provide a workplace which is safe and without risks to health; and
- employees’ obligation to take reasonable care for the health and safety of themselves and others.
WorkSafe alleged breaches by the corporate entity behind the Café, the director of the corporate entity, the manager of the café and two workers. The five defendants were convicted and fined a total of $335,000.
While prosecutions under OHS legislation have traditionally focussed on breaches resulting in physical injuries to employees, it is clear that the obligation to provide a workplace which is safe and without risks to health, include an obligation to ensure the workplace is free from risks to mental health. The Panlock decision is part of a growing trend towards prosecutions for psychological injury. Despite this trend, the Act was introduced to address a perceived leniency in cases such as Brodie Panlock’s, where the only recourse available was a prosecution under the OHS Act. The introduction of the Act is likely to lead to further attention on this issue by safety regulators around the country.
The growing trend towards prosecutions under OHS legislation for psychological injuries, the introduction of the Act in Victoria and recent media reports suggesting the federal government may also push to introduce similar laws across all jurisdictions, all heighten the need for employers to be proactive in this area. The social and financial costs associated with not acting adequately to address workplace bullying are clear.
Employers must develop, implement and enforce an anti-bullying policy which properly addresses the potential risks arising from bullying. The policy should detail the circumstances where workplace bullying can arise and the consequences of breaching the policy. Importantly, the procedures and standards set out in the policy must then be communicated to employees and, in the event of a breach, enforced.
*The amendments to the Crimes Act came into force on 8 June 2011.