Employers outside Victoria have been warned that the absence of a “Brodie’s Law” in their jurisdiction doesn’t mean they are any less exposed to legal action in the event of workplace bullying. It is however our experience that the legislation is not enforced – injured workers who are relentlessly bullied by their insurer and/or employer have literally “no where to go” and it seems the norm, even in Victoria, that the perpetrators walk away scot-free!
Workplace bullying costly for employers – really?
In a report, Solicitor Peter Doughman, [Carroll and O'Dea Lawyers], stated that last year’s (June 2011) changes to the Victorian Crimes Act extended the definition of stalking to include threats, abusive acts or other behaviour that could reasonably be expected to cause a victim to engage in self-harm.
The changes to the Victorian Crimaes Act, which were prompted by the 2006 suicide of Melbourne waitress Brodie Panlock, who was relentlessly bullied by colleagues – extended the definition of stalking to include threats, abusive acts or other behaviour that could reasonably be expected to cause a victim to engage in self-harm.
This means that workplace bullies can now be jailed for up to 10 years…. But, so far, we have yet to see the first bully jailed
Solicitor Douhman also stated in his report that “the Fair Work Act 2009 does not contain any provisions that deal specifically and solely with bullying, and so far, no other state has yet contemplated similar legislation to Brodie’s Law”.
“However, non-Victorian employers should not interpret this to mean that non-specific bullying is un-actionable.”
Bullying allegations, Solicitor Doughman said, can “form the factual basis” for claims for:
- workers’ compensation – victims of workplace bullying unable to perform their duties can claim weekly benefits, reimbursement for medical expenses and lump-sum compensation. Such claims can have a significant impact on insurance premiums;
- adverse action/discrimination – adverse action claims (arising from harassment undertaken for unlawful reasons) impose a reverse evidentiary onus on employers, while discrimination claims can expose employers to vicarious liability;
- unfair dismissal – employees who resign, or are “constructively” dismissed, because of perceived bullying conduct can be awarded up to 26 weeks’ wages in compensation; and
- breach of contract – employers that allow sustained bullying and harassment can be found in breach of an implied contractual term of mutual trust and confidence, or their bullying policies and grievances procedures.
He also said that workplace bullying can also expose employers to OHS prosecutions.
Under the model Work Health and Safety Act, which took effect early this year, an employee can be prosecuted for failing to comply with “a positive health and safety duty”, and fined up to $500,000 for “the objectively least serious offences”.
“Accordingly, employers should take seriously any bullying complaints made by employees and undertake appropriate investigations into such allegations,” Sollicitor Doughman says.
“Investigations should be transparent and impartial, and any subsequent action should demonstrate procedural fairness towards all relevant parties”, he said.
According to the Victorian Crimes Act, fact is that my former return to work “coordinator”, appointed rehabilitation service “manager”, former employer and my former workcover case manager ought to be in jail by now, if not, at least heavily fined.
Fact is, as Trinny pointed out, that we are paying for bullying with our own money!