BULLYING FACT SHEET FOR AUSTRALIA ©
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WORKPLACE BULLYING IS REAL!
THE DUTY OF CARE BULLYING PREVENTION SERIES
“If employers think bullying in the workplace does not cost, they should think again!”
Research by Griffith University shows bullying incidents, on average, cost $20,000. The total cost to the economy is $6 - $13 billion and more than 90% of workers will experience some form of bullying during their career - and employers can face hefty fines either from WorkCover, where in NSW for example fines of up to $825,000 have been imposed, or large pay-outs via the Industrial Relations Commission have been made.
OCCUPATIONAL HEALTH AND SAFETY LAWS
Under occupational health and safety laws, employers have a duty to ensure the health, safety and welfare at work of all their employees. This includes providing safe plant and systems of work, information, training and adequate supervision. The risk to health can be either physical or psychological. The WorkCover Authorities in each State or Territory have the power to prosecute employers who fail to fulfil this duty. The various penalties on a State and Territory basis are outlined below.
BREACH OF CONTRACT
Every employer and employee has a contract of employment between them, even if it is not written down. The law also says that, as part of that employment contract, every employer has a duty to take reasonable care of an employee’s safety. As our High Court has said: “The standard of care for an employee’s safety is not a low one.” (O’Connor v Commissioner for Government Transport, (1954) 100 CLR 225).
Accordingly, if an employer breaches that contractual duty by failing to prevent workplace bullying, the employee can sue the employer for breach of contract and potentially obtain damages from the employer for that breach of contract.
Additionally, the law in Australia is also coming to accept that an employer must not, without reasonable cause, undermine the trust and confidence that an employee places in the employment relationship. Again, exposing that employee to workplace bullying would arguably be a breach of that contractual term.
An employee may also be forced to resign due to the workplace bullying. In the eyes of the law, where an employee is forced to leave his or her job due to the actions or inaction of the employer then this is considered to be a constructive dismissal. When an employee is constructively dismissed, he or she may bring a claim against an employer for unfair or unlawful dismissal and seek reinstatement and/or compensation.
Under contract law once an employer becomes aware, or should have become aware of workplace bullying then it must take action to prevent that bullying.
Note: A single serious act of bullying or a persistent pattern of minor acts or incidents of bullying by the employer, or the employee staff for whom it is vicariously liable; may be enough to constitute a sufficient breach of the employer obligations under the contract of employment so as to amount to a constructive dismissal.
PERSONAL INJURY LIABILITY
Not only does an employer have contractual obligations to an employee but it also has an additional duty of care to an employee which it must not breach – this obligation arises in the law of tort, commonly known as negligence. The obligation is similar but distinct from an employer’s contractual obligation. Put simply, an employer has a legal obligation to provide a safe system of work and where the employer breaches that obligation then it would be liable to the employee for damages for personal injury.
In this area, there is what is known as vicarious liability. This is where an employer is liable because of what an employee has done or failed to do, despite the utmost precaution taken by the employer. Of course, vicarious liability does not extend to cover every act of an employee, as the conduct of the employee must have a close relationship to their work and the act must be negligent or intentional. However, in certain circumstances an employer may be liable for workplace bullying committed by another employee even where that employer has no knowledge of the conduct of the employee. This is particularly so in circumstances where an employer has failed to provide any training.
Employers are also under a legal obligation to provide a safe system of work, and this includes making sure that all employees behave themselves on the job. If an employer knows that some employees are bullying others, but does nothing to stop this, then the employer will be liable if another employee suffers loss.
WORKERS COMPENSATION
Generally a person, who has suffered a personal injury arising out of, or in the course of, his or her employment shall receive compensation from the worker’s employer. The employer does not have to be at fault for the injury. Workers compensation injuries can include both physical and psychological injuries.
So long as employment was a substantial contributing factor to the injury the employee will probably receive workers compensation payments. Of course this has a significant impact on an employer’s workers compensation premium.
ANTI-DISCRIMINATION LAW
Increasingly, employees who have suffered because of workplace bullying also consider complaints to the Equal Opportunity Commissions or Anti-Discrimination Boards, or the Federal Human Rights and Equal Opportunity Commission, claiming that they have been the victims of unlawful discrimination.
This has been common for years in the case of sexual harassment, but now employees are beginning to realise that other forms of workplace bullying, such as the bullying of young male apprentices or young female staff, may also lead to complaints on the grounds of sex or age discrimination.
ACTUAL EXAMPLE:
A 17 year old apprentice whose co-workers “tarred” him with grease, tried to bind him with masking tape, and grabbed him around the throat, made a complaint to the Anti-Discrimination Board on the ground of age discrimination. The case was settled on the morning of the hearing on confidential terms. The apprentice was expected to have sought $40,000.00 for each claim of discrimination. (“Secret settlement for whipping-boy apprentice” (19 August 1997) The Australian, p 3)
FINES AND PENALTIES FOR EMPLOYERS AND EMPLOYEES
NSW
- Occupational Health and Safety Act 2000
The maximum penalty for a first offence is $550,000.00 for a corporation or for a second offence $825,000 and for an individual $55,000.00, or for a second offence $82,500 or imprisonment for 2 years or both.
VICTORIA
- Occupational Health and Safety Act 1985
The maximum penalty is $250,000 for a corporation and $50,000 for an individual and for contravening any regulation the maximum is $40,000 for a corporation and $10,000 for an individual.
QUEENSLAND
- Workplace Health and Safety Act 1995
Maximum penalties for breaches of the Act are $375,000 for a Corporation and for an individual $75,000 or 2 months imprisonment.
SOUTH AUSTRALIA
- Occupational Health and safety and Welfare Act (SA) 1986
Section 4(4) of the Act deems workplace bullying an offence by defining an occupational health and safety matter as including anything that effects a worker’s general well being at work.
As workplace bullying comes under this description it clearly qualifies as an occupational health and safety hazard.
An employer who fails to take all reasonable practical measures to stop or prevent workplace bullying faces conviction and a maximum fine of $100,000 for a first offence and $200,000 for subsequent offence.
Employees who are involved workplace in bullying face a maximum fine on conviction of $5,000.00
These penalties can be imposed not only on individual employers, but also upon institutional employers and, more significantly, on the most senior manager of an enterprise or organization personally, if he or she is resident in Australia.
WESTERN AUSTRALIA
- Occupational Safety and Health Act 1984
Maximum penalties for breaches of the Act are now $500,000 for a corporation or $625,000 for a subsequent offence. Penalties also include prison terms for directors and managers who are involved in gross negligence!
ACT
- Occupational Health and Safety Act 1995
The ACT legislation imposes appropriately high penalties where persons recklessly or negligently breach a safety duty and expose or cause serious harm to employees and others. Maximum penalties are now $200,000 for natural persons and $1,000,000 for corporations.
Under the ACT Crimes Act 1990, a company and a director can be convicted of industrial manslaughter in two instances. The first is when the decisions of a director cause the death of a worker and the second is when a director allows a corporate culture to develop that disregards workers’ safety and results in death. The ACT law prescribes fines of up to $1.25 million for companies found guilty and jail sentences of up to 20 years when a director or senior manager is found guilty.
NORTHERN TERRITORY
- Work Health Act
Maximum penalties for breaches of the Act are $3,000 for a Body Corporate and $1000 or 3 months imprisonment for an individual. Reviews of these penalties will be conducted in the near future and significant increases are likely.
TASMANIA
- Workplace Health and Safety Act 1995
Maximum penalties for breaches of the Act are $150,000 for a Corporation and $50,000 for an individual.
