In a recent workplace health and safety prosecution under the Occupational Health and Safety Act 2004 (Vic), a fashion retail business was convicted and fined for offences solely related to bullying.
This decision highlights the upward trend of safety regulators prosecuting employers for conduct which poses a risk of psychological injury.
The bullying conduct was perpetrated by a manager towards an employee while she was away from the workplace with a work injury. The conduct was described as 'repeated negative behaviour'. It included the manager alleging the injured employee was faking a back injury in order to receive workers compensation.
The charge against the employer was a failure to provide and maintain an environment that was safe and without risks to health. This included a failure to provide or maintain safe systems of work.
The prosecution relied on the following to prove the employer did not provide or maintain systems of work:
- absence policies or procedures
- failure to appropriately regulate inappropriate workplace behaviour
The director of the business was also convicted and subject to non-monetary training orders.
The court ordered the employer to pay the prosecution's costs of $10,308 and a fine of $10,000. The Court noted that had the employer not entered a guilty plea, it would have been ordered to pay $30,000 in penalties.
Implications for employers
Although the fine was relatively low, the decision is important as:
- The prosecution involved a psychological injury caused by bullying behaviour;
- The company's lack of appropriate policies and procedures to prevent bullying and harassment was key to the employer's conviction;
- The individual director was convicted and ordered to undertake training; and
- The prosecutor's costs were higher than the penalty. Many jurisdictions (NSW, Victoria and WA) now prohibit insurance for fines but still allow insurers to cover defence and prosecution costs. The case shows why it can be important for business to consider cover for WHS prosecutions, despite the prohibition on indemnification for fines;
Bullying is a psychosocial risk which can be prevented by having the right policies, procedures and training in place. This is particularly relevant given the new regulations requiring employers to identify and eliminate psychosocial hazards as far as is reasonably practicable. Psychosocial hazards include bullying.
You can read further about obligations to eliminate psychosocial hazards here: New OHS regulations dealing with psychosocial hazards
The Workplace team at Gilchrist Connell is available to assist with any workplace health and safety enquiries.
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