An Australian employer who engaged in, and encouraged employees to participate in, workplace bullying has been prosecuted and fined for failing to provide a safe system of work.
This is an unusual case involving serious and sustained bullying and physical abuse. However, the decision is a timely reminder for New Zealand employers that mental and emotional harm is a health and safety risk which must be managed in accordance with the Health and Safety at Work Act 2015 (HSW Act).
Bell Gully recommends that employers become familiar with WorkSafe New Zealand’s detailed best practice Bullying - Preventing and responding to workplace bullying guideline. This helpful resource is supported by a range of online tools designed by WorkSafe to assist organisations to address workplace bullying. A copy of the guideline and WorkSafe’s other resources can be found here.
On 3 June 2016, an Australian employer, Wayne Dennert pleaded guilty to a representative charge laid under Victoria’s Occupational Health and Safety Act 2004 for failing to provide a safe system of work. Mr Dennert was prosecuted in the Geelong Magistrates’ Court for bullying his 18 year old apprentice over a two year period. He was convicted and fined AUD$12,500 and ordered to pay court costs of AUD$750. The capacity in which Mr Dennert was prosecuted is not entirely clear from media reports – he is referred to variously as an employer, as well as a manager and supervisor.
Mr Dennert ran a carpentry business which employed two apprentices and two subcontractors. The victim began working for the business as an apprentice carpenter in April 2013 when he was 16 years old. In April 2015, the 18 year old victim complained to WorkSafe Victoria that he had been bullied by Mr Dennert since he had commenced his employment two years earlier.
The allegations included incidents of verbal, physical and psychological bullying and harassment. Examples of some of the abuse included being drenched with water, spat on, having ‘Liquid Nails’ squirted in his hair, a meths-soaked rag held over his mouth, a live mouse put down his shirt, hot drill bits held against his skin, plaster smeared across his face and into his eyes, sandpaper scraped across his face, and being pinned down while a strip of paint was applied to his face.
WorkSafe Victoria’s investigation established that the offender had engaged in workplace bullying and encouraged his employees to participate in bullying behaviour. WorkSafe Victoria prosecuted Mr Dennert for failing to provide a safe system of work and the necessary information, instruction, training and supervision to employees in relation to workplace bullying.
WorkSafe Victoria prosecutor, Ms Barnes, said that Mr Dennert had an obligation to proactively recognise and act on workplace bullying and to demonstrate positive behaviour. It was reasonably practicable for him to regulate his own behaviour and that of his employees to stop engaging in such conduct. WorkSafe Victoria described Mr Dennert’s behaviour as an appalling abuse of power: “Not only did he use his position of power to encourage a bullying culture among his workers, he actively participated”. Mr Dennert had responsibility under law to proactively recognise workplace bullying and put a stop to it.
Magistrate John Lesser said that because of their inexperience, young workers are particularly vulnerable to psychological and physical risks in the workplace.
Implications for New Zealand employers
Workplace bullying in New Zealand is a significant risk which affects personal health and safety.
Like Victoria’s health and safety legislation, the HSW Act requires a person conducting a business or undertaking to ensure, as far as reasonably practicable, the health and safety of workers. This includes the provision of a safe working environment, safe system of work and the necessary information, instruction, training and supervision to protect workers from risks and hazards which might affect health and safety. Risks and hazards include workplace bullying and mental and emotional harm. Significantly, the definition of hazard in the HSW Act expressly includes a person’s behaviour where that behaviour has the potential to cause death, injury or illness to another person.
Employers who do not take active steps to prevent workplace bullying risk breaching the HSW Act and may also be exposed to liability under the Employment Relations Act 2000 and the Human Rights Act 1993. Additionally, an individual who assaults or injures workers may also be exposed to criminal liability under the Crimes Act 1961.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.