There have been a number of prosecutions this year that have resulted in workplace bullies being found to have breached their duties under State and Territory work health and safety legislation.
For instance, WorkSafe Victoria has reported a number of successful prosecutions against workplace bullies this year and we recently discussed a decision of the District Court of New South Wales in which a tradesman was convicted and fined for breaching his duties under WHS laws in NSW after he had bullied a number of apprentices in the workplace – see our blog, ‘Court Bags a Bully’.
Most recently, SafeWork SA successfully brought proceedings against two former supervisors (a site supervisor and a supervisor/leading hand) at an electrical company who had bullied an apprentice, including setting his clothing on fire (Campbell v Rowe  SAET 104 and Campbell v Chenoweth  SAET 181).
In the proceedings, the South Australian Employment Tribunal (SAET) heard that the supervisor/leading hand squirted flammable liquid onto the 19-year-old apprentice’s boot, which he then lit with a lighter. The supervisor/leading hand then squirted flammable liquid on the apprentice’s crotch area, and then chased him down and pinned him against a wall to squirt more flammable liquid on his shirt sleeves. The apprentice’s shirt caught on fire and the site supervisor then squirted more flammable liquid on the apprentice’s shirt, causing more flames. The apprentice had singed hair on his left arm but thankfully no serious injuries.
Both supervisors pleaded guilty to engaging in reckless conduct that put the apprentice at risk of death or serious injury, in breach of their health and safety duty under the Work Health and Safety Act 2012 (SA) (the Act).
In sentencing, the site supervisor, who had worked at the company for nearly 30 years prior to his dismissal, made submissions as to his otherwise good character, his lack of offending history and his inability to find another job. Whilst submitting that this was a “high jinx gone wrong”, he had immediately acknowledged his wrongdoing and accepted the seriousness of the matter.
The supervisor/leading hand, who at the time of the incident was 26 years old and had been working at the company for 9 years, submitted that this incident was a defensive mechanism to deflect from bullying he had himself been victim to in the workplace. He submitted that he was deeply remorseful and, now that he had found alternative employment, he realised the gravity of his conduct. According to the supervisor/leading hand, this was “an act of gross stupidity” in the context of a poor workplace culture.
The SAET was mindful of the remorse of both supervisors and the consequences they had suffered since the incident. It was also mindful that this incident was attributable in part to the “regrettable workplace culture” that had developed at this particular workplace.
However, there was a significant power imbalance in this situation and there was a very real potential that the supervisors’ conduct could have had a devastating outcome.
For these reasons, the SAET held that general and personal deterrence needed to be featured in the penalties. After applying a 40% discount for their guilty pleas, the site supervisor was fined $12,000 (mostly for failing to stop the supervisor/leading hand) and the supervisor/leading hand was fined $21,000 (for engaging in the majority of the conduct).
The SAET also recorded convictions against both supervisors noting that, to not do so would fail to reflect the seriousness of the nature and circumstances of the offences.
Lessons for employers
The principal lesson to be learnt from this unfortunate matter is that workplace bullying is a major work health and safety concern and that safety regulators will not hesitate to prosecute employees who act in disregard of their work health and safety duties.
Senior management have a very real responsibility to set an example for the rest of the workplace particularly when it comes to the culture of the workplace and the health and safety of their employees.
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.
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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.
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