Managing the risk of workplace bullying – A renewed focus on psychosocial risks

This article examines the recent trend in Victoria – and nationally – of prosecutions by regulators for failures to prevent workplace bullying, and the practical steps that employers can take to mitigate the associated risks.

Key takeouts

In light of WorkSafe’s renewed focus on psychosocial risks and the courts’ toughening stance on breaches of the OHS Act involving workplace bullying, employers should take steps to implement and/or review their existing workplace bullying and harassment policies.
A failure to adequately respond to and protect employees from the risks associated with workplace bullying has the potential to create significant exposure for employers – even if workplace bullying policies are in place but not enforced.

In Victoria, we are seeing an increasing preparedness from WorkSafe to prosecute, and the courts to convict and fine, employers and individuals under the OHS Act in relation to matters involving allegations of workplace bullying.

In a decision of the Sunshine Magistrates’ Court in April 2019, Mr Matthew Sallama, a retail manager of John’s Nuts Operations Pty Ltd (John’s Nuts) was convicted and fined $7,500 and ordered to pay $2,000 in costs in relation to a single charge under sections 144 (liability of officers of bodies corporate) and 21 (duties of employers to employees) of the Occupational Health and Safety Act 2004 (Vic) (OHS Act).

Mr Sallama’s offending related to bullying behaviour which he exhibited towards an employee, for a period of six months. The behaviour included belittling, the use of degrading and offensive language when speaking to the employee and speaking to them in an aggressive, intimidating and abusive manner. It was also alleged that Mr Sallama bullied the employee by threatening to dismiss him, ‘burn’ his wages, deduct from his pay any road-toll expenses that he incurred in the course of his work from his pay, and refusing to pay for his immigration visa. It was alleged that as a result of the bullying, the employee was exposed to health and safety risks, causing him to suffer distress, depression, fearfulness and tearfulness.

In December 2018, John’s Nuts received a company conviction and fine of $80,000 for the same bullying offence, as well as a $60,000 fine for a separate incident involving the same worker, where it had made late payments for a work injury claim and failed to provide suitable post-injury employment.

These convictions follow a number of other matters in Victoria where individuals and employers have been convicted (or individuals have agreed to participate in diversion programs) as a result of breaches of the OHS Act for workplace bullying. In particular, in June 2019, a security firm operations manager who engaged in a range of bullying behaviour agreed to participate in a diversion program, in lieu of a conviction for alleged breaches of the OHS Act. The bullying behaviour including speaking to employees loudly, aggressively or in an abrasive manner, threatening employees with having to speak to the security firm’s director directly about a workplace issue, threatening employees that he (the offender) would make a complaint about them to the security firm’s director and making inappropriate physical contact with an employee.

Similarly, in late 2017, the Ballarat Magistrates’ Court convicted and fined Skyride Tower Hire an employer in the tree maintenance business, $20,000 plus $15,000 in costs, for a breaches of section 21(1) and (2)(a) of the OHS Act, for allowing one of its directors to repeatedly bully a worker over the course of a three year time period.