Over two instalments, we examine legal avenues to compensation.

Part 1: Legal Remedies for Bullying-Criminal Law, Compensation and Negligence

Bullying at work has had a lot of media coverage following the death of Brodie Panlock, who committed suicide after being mercilessly bullied at work. On 31 May 2011, the Victorian Government passed legislation known informally as Brodie’s Law which made bullying a criminal offence in some circumstances.

Bullying can constitute a breach of the Occupational Health and Safety Act 2004 (Vic)(OHS Act). The OHS Act imposes duties on employers, employees and others to ensure a safe workplace. In Victoria, ‘bullying’ is not defined in the OHS Act, though WorkCover defines it as: “Repeated unreasonable behaviour directed toward an employee or group of employees that creates a risk to health and safety“.

Employers can be prosecuted for failing to provide a safe workplace under the OHS Act. Bullying can include behaviour such as verbal or physical abuse; excluding or isolating behaviour; psychological harassment; intimidation; assigning meaningless tasks unrelated to the job; giving employees impossible assignments; deliberately changing work rosters to inconvenience particular employees and deliberately withholding information that is vital for effective work performance. If the OHS Act is breached, prosecutions may be brought by WorkCover for a range of remedies, including orders to undertake improvements, prosecutions and penalties. It is generally up to Work Safe to decide whether to take action in these cases. However, in 2010, of 6000 bullying complaints to WorkCover only 60 resulted in an inspector visiting a workplace.

Brodie’s Law

Emphasising the serious dimensions of such behavior, Brodie’s Law meant that certain types of offensive conduct associated with bullying were recognised as a crime in certain limited circumstances. Although, it should be noted that the Crimes Act 1958 (Vic) arguably deals only with the perpetrator and not with the employer as such.

Initially, the changes were located in the Crimes Act, the Stalking Intervention Orders Act and the Personal Safety Intervention Orders Act 2010.

Following further changes, the relevant provisions were streamlined and are now located in the definition of ‘stalking’ in the Crimes Act and in the Personal Safety Intervention Orders Act 2010. The offence of stalking is set out in s21A Crimes Act and is punishable by a maximum 10 years imprisonment. The Personal Safety Intervention Orders Act 2010 contains mechanisms whereby certain orders may be obtained to protect those who are subjected to behaviour often associated with bullying, such as stalking, among other things.

Under the changes, the offence of stalking has been extended to include common aspects of bullying behaviour, such as making threats to the victim, using abusive or offensive words to, or in the presence of, the victim, performing abusive or offensive acts in the presence of the victim, or directing abusive or offensive acts towards the victim.

For the behaviour to constitute a criminal offence, the acts must be done “with the intention of causing physical or mental harm to the victim or of arousing apprehension or fear in the victim for his or her own safety or that of any person”. The definition of harm has been extended to include psychological harm and suicidal thoughts including “self-harm”.

Victims of crime

Victims of a crime are entitled to claim compensation under the Victims of Crime Assistance Act 1996 (Vic) which allows for maximum total compensation of up to $60,000. Claims for crimes compensation must be made within 2 years of the crime and/or within 2 years of the offender being convicted. Crimes compensation awards will take into account other damages or compensation which may have been recovered. Most workers who are bullied at work, however, will have difficulty showing that the perpetrator has committed a crime, although in the case of serious or sustained bullying at work, this conduct should be reported to both the employer and the police.

A victim of a crime may also be able to claim compensation pursuant to s86 of the Sentencing Act 1991 (Vic). An application for compensation under the Sentencing Act must be made to the Sentencing Judge within 12 months of the date of sentencing. However, pursuant to s138B of the Accident Compensation Act 1985 (Vic), a court cannot order an employer to pay compensation under the Sentencing Act to a victim of a crime where the worker has an entitlement to compensation under the Accident Compensation Act and where the conduct may constitute an offence under the OHS Act, the Dangerous Goods Act 1985 (Vic) or the Equipment (Public Safety) Act 1994 (Vic).

Further, again pursuant to s138B, compensation under the Sentencing Act cannot be awarded where the employer’s conduct would constitute an offence against s242AA of the Accident Compensation Act ie where a worker has been discriminated against because they have suffered a work related injury and/or because they lodge and/or pursue a claim for workers compensation.

Workers Compensation

Under workers’ compensation laws, workers who are injured in the course of their employment can claim for loss of earnings, medical and like expenses and in some circumstances, lump sum compensation.

However, workers in Victoria (WorkCover) and workers covered by the Federal Scheme (Comcare) face exclusionary provisions when it comes to claiming compensation for psychological injury. These provisions set out specific circumstances where even though a worker has suffered a psychological injury caused by work, an employer will not be liable for the injury if it was caused or contributed to by one or more of the exclusionary factors.

By way of example, s5A of the Safety Rehabilitation and Compensation Act 1998 (Cth) (Comcare scheme) states that “reasonable administrative action” includes a reasonable appraisal of the employee’s performance or reasonable counseling session (whether formal or informal), reasonable disciplinary action and/or anything reasonable done in connection with the emplyee’s failure to obtain a promotion, reclassification, transfer or benefit in connection with his/her employment.

Similar provisions, precluding claims for management action taken on reasonable grounds, apply under the Accident Compensation Act in Victoria and in other State jurisdictions.

The problem for workers who are bullied is that these provisions are routinely relied upon by employers who want to wriggle out of potential claims. An irony is that whilst the Federal Government routinely relies on these provisions when Commonwealth workers who allege they have been bullied claim compensation, it is at the same time launching an inquiry into workplace bullying which will be conducted by the House Standing Committee on Education and Employment.

Employer negligence and the threshold barrier

At common law, employers can be held to be vicariously liable for the conduct of employees but only where it can be shown that the employer knew or should have known that the conduct was occurring; that it was likely to cause harm to the victim; or that there was a failure on the part of the employer to take reasonable care. There is a general principle that employers cannot be held to be vicariously liable for the criminal conduct or intentional acts of employees. However, an employer may well be held to be vicariously liable for criminal conduct where it can be shown that an employer knew or should have known that the conduct was occurring. In these circumstances, an employer could be liable to pay damages for the injury sustained by the employee. These common law rights are, however, subject to significant limitations in the various States and Territories by operation of workers compensation laws.

In Victoria for example, even if it can be shown that the risk of injury was foreseeable, pursuant to s134AB of the Accident Compensation Act 1985 (Vic), an employer can only be sued for damages if the worker has suffered a serious injury and/or where the worker has suffered a 30% impairment or more. This means that even if a worker can show that their employer has negligently allowed the injury to occur, unless the conduct has resulted in a “serious injury” there is generally no right to claim damages.

Under the Safety Rehabilitation and Compensation Act, which covers Commonwealth employees and other workers employed by some national companies known as “licensees”, a worker can sue for damages if they have suffered a permanent impairment of 10% or more, but the damages are restricted to a maximum payment of $110,000.00, a figure which has not been indexed since 1988 when this legislation was first introduced.

Currently, the ACT is the only Australian jurisdiction where employers can also be convicted of industrial manslaughter where it can be shown that the employer recklessly or negligently caused the death of a worker.(s49C of the Crimes Act 1900 (ACT).

Next week: Legal Remedies for Bullying – Tort of Intentional Harm, Anti-Discrimination Laws, Occupational Health and Safety Act 2004 (Vic) and the Fair Work Act 2009 (Cth)