Safety not guaranteed – Workplace bullying and work health and safety

The anti-bullying measures in the Fair Work Act 2009 (Cth) were introduced in response to the Government Inquiry report, Workplace Bullying: We Just Want it to Stop, which recognised the problem of bullying in workplaces as both an industrial relations issue, and a risk to the work health and safety of workers.

The SafeWork Australia Guide for Preventing and Responding to Workplace Bullying provides that “workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it.”

Just like other risks to health and safety in the workplace, a person conducting a business and undertaking (PCBU) must take steps to eliminate or minimise the risk of bullying. For example, under section 19 of the Work Health and Safety Act 2011, a PCBU has the primary duty of care to ensure, so far as is reasonably practicable, the health and safety of workers whilst at work in the business or undertaking.

In our recent blog – Let me restart: Anti-bullying orders issued to employer and employe... we discussed the broad powers the Fair Work Commission (FWC) has to make orders to stop bullying in the workplace.

Just as importantly, work health and safety regulators have enforcement powers where there has been a breach of the WHS laws, including those arising from bullying behaviour.

Recently, WorkSafe Victoria prosecuted Skyrider Tower Hire Pty Ltd in the Ballarat Magistrates Court for failing to provide and maintain a working environment that was safe and without risks to health, specifically in relation to bullying behaviour.

A former employee had complained to the company and later to WorkSafe Victoria about the bullying behaviour of a co-director that caused the former employee to suffer a psychological injury.

In prosecuting the matter, WorkSafe Victoria told the Court that the co-director had bullied the former employee by swearing at him, making sexually inappropriate comments, engaging in belittling, aggressive and abusive conduct and hindering the employee from performing his role which led to the employee suffering a psychological injury.

The Court heard that the company was aware of complaints by multiple employees and although it had a workplace bullying policy, that policy was not enforced.

The company plead guilty to a breach of section 21 of the Occupational Health and Safety Act 2004 (Vic) and was fined $20,000.00. The company was also ordered to pay WorkSafe Victoria’s costs of $15,000.00.

Lessons for employers

Employers should be proactive in eliminating or minimising risks of bullying in the workplace and should appropriately manage any complaints of bullying as they arise.

The potential consequences of failing to act on workplace bullying complaints are not limited to the stop-bullying jurisdiction of the FWC. A safety regulator may prosecute employers for failing to comply with a health and safety duty and penalties will apply for offences.

Shane Koelmeyer is a leading workplace relations lawyer and Director at Workplace Law. Workplace Law is a specialist law firm providing employers with legal advice, training and representation in all aspects of workplace relations, employment-related matters and WH&S.

02 9256 7500 | sydney@workplacelaw.com.au

Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.

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