Safe Work Australia has recently revealed that the number of serious workplace injuries related to bullying and harassment has nearly doubled in Australia since 2009.  Mental health-related  claims that involve workplace harassment or bullying are skyrocketing, with about a quarter of all psychological claims based on allegations of workplace harassment or bullying.  In the 2019/20 financial year, over 1,800 people were compensated for a workplace injury sustained through workplace bullying or harassment.

In light of these numbers, WHS regulators around the country have become increasingly focussed on prosecuting individuals for bullying-related breaches of the national harmonised WHS law.

Highlighting the significant risks for employers, Tad-Mar Electrical Pty Ltd (Tad-Mar) was this month fined $15,000 ( the maximum penalty is $500,000) after pleading guilty to the Category 3 offence of contravening section 33 of the Work Health and Safety Act 2012 (SA) (WHS Act).

The decision follows successful category 1 convictions of both of the individual employees involved in the incident.  This decision is significant as it represents the first conviction for a bullying-related prosecution under the national harmonised WHS law.

Background

In March 2017, a 19 year old first-year apprentice electrician employed by Tad-Mar was targeted by two more senior employees.  The Leading Hand squirted the apprentice’s boot with flammable liquid before deliberately igniting it whilst at a client’s worksite.  He later squirted more of the liquid onto the apprentice’s clothing and chased him through the site lunch room, where he pinned the apprentice to the wall flicking the lighter.  The Leading Hand then released the apprentice as the young man begged him not to set his pants alight.

However, the Leading Hand followed the young man as he left the lunchroom, squirted his shirt with more of the flammable liquid and deliberately set his clothing alight.  A Site Supervisor with 30 years of experience observed this incident as he was walking with the Leading Hand.  He did nothing to put an end to it, instead taking the flammable liquid and himself squirting more of the liquid onto the apprentice’s burning shirt, feeding the flames.

Fortunately, no serious injury resulted, however it was found that the incidents were very dangerous and could have resulted in serious burn injuries to the young apprentice, or worse.

The Tribunal rejected that this was “horseplay which went astray” and found that the potential for a devastating outcome from this incident was real.  It was specifically noted that the young apprentice must have been frightened by the Leading Hand’s conduct, but was unable to put a stop to it in light of the power imbalance.  Of note, the apprentice has suffered anxiety as a result of this unprovoked workplace violence.

When the company learned of the incidents, both the Leading Hand and the Site Supervisor were dismissed for serious misconduct.  The company self-disclosed the incident to SafeWork South Australia (SafeWork) and participated fully in the subsequent investigation, which resulted in both the Leading Hand and the Site Supervisor being charged with Category 1 offences.  This represents the most serious WHS offence, recklessly exposing an individual to the risk of death or serious injury (pursuant to section 31 of the WHS Act).

Proceedings against Employer

In the prosecution of the Employer, the Tribunal agreed with the prosecutor that the WHS policies and procedures Tad-Mar had in place at the time of the incident were deficient regarding bullying and harassment and did not amount to safe systems of work.  He also found that Tad-Mar had failed to provide adequate training on bullying and harassment and that the failure to provide such training increased the risk of employees engaging in intimidating conduct that exposed other workers to physical and mental safety risks.

Both the prosecutor and the Tribunal accepted that the employer had cooperated fully with SafeWork, had no previous convictions and had pleaded guilty at the first available opportunity.  It was also accepted that the employer was remorseful and had accepted responsibility for the inadequacy of its policies and procedures, which had since been revised.  However, these mitigating factors did not detract from the serious nature of the incident.

Interestingly, in imposing the fine on Tad-Mar, the Magistrate noted that he was “impressed” by the fact that Tad-Mar had self-reported the conduct.  Particularly, he held that self-reporting was consistent with Tad-Mar’s contrition, with Tad-Mar’s acceptance of responsibility for its role in the incident, and with Tad-Mar’s recognising that its bullying and harassment policies and procedures were deficient at the time.  He also considered the swift dismissal of the perpetrators was further evidence that the conduct was regarded by Tad-Mar as totally unacceptable.

Initially, the Deputy President Magistrate imposed a fine of $25,000, out of a possible $500,000, on Tad-Mar for its conduct, and recorded a conviction.  However, he reduced the fine by 40% to $15,000 due to Tad-Mar’s early guilty plea.

Lessons learned

The apprentice did not suffer any physical injury during his frightening experience, and remains employed with Tad-Mar.  Furthermore, SafeWork did not fault the conduct of the employer after the incident came to its attention, and the Tribunal was complimentary of the report and the cooperation offered.

Despite this, and all the relevant mitigating circumstances, the employer had a conviction recorded and a fine imposed.  This decision emphasises the risk-based nature of the harmonised WHS Act and confirms that it is unnecessary for harm to eventuate in order for the Regulator to prosecute and for convictions to be recorded.

Both individuals were convicted of Category 1 Reckless Conduct offences in separate decisions.  The maximum penalty for this contravention is five years imprisonment and a $300,000 fine.  The Site Supervisor was convicted and fined $12,000; the Leading Hand was convicted and fined $21,000, after applying a significant discount for an early guilty plea in both cases.

It was noted by the Tribunal that the Leading Hand was the main protagonist and had a history of bullying behaviour towards the young apprentice.  In contrast, the Regulator submitted that the primary complaint about the Site Supervisor’s conduct was that he failed to intervene to prevent the ongoing conduct by the Leading Hand.

While the individual decisions highlight the duty of all workers to take reasonable care for the safety of others, employers should take particular note of the comments of the Regulator in the wake of these decisions:

It is not enough for a business to just have a ‘no bullying’ policy. Executives, managers and supervisors must live and breathe that policy to ensure it is ingrained in the fabric of organisational culture …I would encourage every business to look at their own processes for how they manage bullying. If they fall short of the standard then they need to ask for assistance to make sure they are legally compliant and doing what is required to ensure worker health and safety.

The Regulator’s position confirms that such claims are currently regarded as a high priority area for it, as for many WHS Regulators around the nation.  In view of the above, it is important for employers to ensure they have properly implemented and promoted comprehensive bullying and harassment policies and procedures, which are adequate to both dissuade such unacceptable behaviour and to promote employee confidence in the complaint and investigation process.

If you require assistance with workplace bullying training or a review of your policies and procedures, please do not hesitate to contact our team.

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