Bullying conviction under WHS laws a salutary warning to businesses

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Last week’s criminal conviction of an employer for the persistent and serious bullying of an apprentice represents a stark warning for employers, according to partner with MinterEllison, Harriet Eager.

Wayne Allan Dennert was fined $12,500 by Geelong Magistrates Court under workplace health and safety (WHS) laws for bullying by him and other employees of an apprentice who suffered anxiety and depression as a result of his subjection to physical, verbal and psychological abuse over a period of two years.

The case was unusual in that the employer was convicted under the workplace health and safety regime rather than the Fair Work Commission’s anti-bullying jurisdiction.
 
“While we’re seeing more successful applications in the anti-bullying jurisdiction of the Fair Work Commission, it’s unusual for a prosecution under WHS laws for bullying,” said Eager.

“This conviction is one of only a handful of criminal convictions in Australia under WHS laws for bullying in the workplace.”

The fact this case was unexpectedly prosecuted under WHS laws should serve as a reminder to employers that the consequences of bullying in the workplace can be extremely serious. In this case, bullying included ripping the apprentice’s shorts, holding a rag soaked in methylated spirits over his mouth and applying hot drill bits to his skin, along with derogatory name-calling.

“This case confirms that WHS regulators will prosecute businesses and potentially individuals for bullying in the workplace,” said Eager, “particularly where a business has developed a culture where bullying is tolerated. And it shows that courts will convict.

“Officers who do not exercise due diligence to ensure that their business complies with its WHS obligations face a maximum fine of up to $600,000 and/or up to five years in jail in jurisdictions with harmonised regimes. Workers can also be fined up to $300,000 and/or imprisoned for up to five years.”
 
Eager added that employers can be on their guard against workplace bullying by treating it like any other WHS risk.

“A good starting point to demonstrate that your business is taking steps to ensure the health and safety of its workers and others, ‘so far as is reasonably practicable’, is being able to show that you have a bullying policy that has been communicated to staff, that you are training them that bullying is unacceptable, that you provide a mechanism for staff to raise concerns about bullying and that you have a process for investigating bullying complaints.”

 

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