Can employers be held legally responsible for workplace bullying under health and safety laws, and what are the consequences?
Employers can face prosecution under workplace health and safety laws if they encourage, participate in, or fail to prevent workplace bullying that creates an unsafe work environment. The article highlights a case where an employer was convicted and fined after a young apprentice was subjected to severe physical and psychological bullying, resulting in significant mental health harm. In Western Australia, employers have a statutory duty to provide a safe workplace and may face substantial penalties for breaching that obligation. The case serves as a reminder for employers to implement effective workplace policies and risk management measures to prevent bullying and protect employee wellbeing.
Employers should take notice that they may face prosecution under state Health and Safety laws as well as under Fair Work’s anti-bullying jurisdiction for encouraging or participating in bullying in the workplace and thereby breaching their duty to provide a safe workplace for employees.
A Victorian employer was recently convicted and fined $12,500 for contravening state Workplace Heath and Safety laws by encouraging bullying of a young apprentice. The prosecution is unusual in this circumstance as these type of matters would usually be dealt with under Fair Work’s jurisdiction.
The apprentice worked in the employer’s construction company and was the subject of systemic and deliberate abuse. The abuse included having hot drill pieces held to his skin, sandpaper scraped on his face and a rag which was drenched in methylated spirits was held over his mouth. The apprentice was also the subject of continual verbal abuse. After working for the employer the young apprentice suffered from sever trauma and developed anxiety and depression.
The apprentice is reported to have told the Court that “”[he] would rather be burnt, bruised, assaulted, drenched in glue, water, paint, weeks’ old coffee and spat on all over again than to relive a week of the psychological torment [that he] endured”.
The employer was convicted of the breach and fined $12,500 by the Magistrate and was ordered to pay costs of $7,051.
Western Australian employers owe employees a statutory duty of care to provide a safe work environment under section 19 of the Occupational Safety and Health Act 1984 (OSH Act). Section 19 has been considered to enshrine the common law duty of care owed by employers to provide a safe work environment which may include a duty or prevent systematic bullying.
Under the OSH Act, corporate employers can be convicted and fined between $50,000 and $625,000 for breaches of the Act depending on the seriousness of the breach and whether there has been a prior conviction.
This case is a reminder that employers should ensure they comply with workplace obligations under State and Federal law and implement risk management policies.
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