A recent Victorian decision involving the bullying of a waitress by four employees and the prosecution by the employer, MAP Foundation, is an important reminder to employers that workplace bullying is not only bad people management, an occupational health and safety risk but can also create a range of other legal risks.

Brodie Panlock, an employee at Vamp Café, committed suicide after what was described as 'relentless bullying' by His Honour Magistrate Lauritsen in the Melbourne Magistrates Court. WorkSafe prosecuted the company, the employer and employees for breaches of duties under the Occupational Health and Safety Act 2004 (Victoria) ('the OHS Act').

The penalties ordered against each of the employees and the Employer are the most significant penalties ordered in relation to OHS breaches arising from workplace bullying.

While, in this case custodial sentences were not able to be ordered by the Court under the provisions of the OHS Act that the employer and employees were charged, section 32 of the OHS Act does provide for imprisonment in the event that a person has 'recklessly endangered persons at the workplace'.

It is also possible in circumstances of workplace bullying for charges of assault to be pursued by Police.

What should employers do?

• Take preventative action before bullying occurs: publicly display anti-harassment and anti-bullying policies, ensure all workers are trained in appropriate workplace behavior and provide this training on an ongoing basis. Have a transparent conflict resolution procedure.
• Perform regular risk assessments to monitor the health and safety of the workplace.
• Claims of bullying or suspicions that bullying in the workplace is occurring should always be investigated, and if the allegations or suspicions are substantiated, appropriate action must be taken.
• Workplace investigations should be fairly and independently undertaken by internal or external investigators who have the appropriate skills to deal with the allegations.
• Managers should specifically be provided with appropriate training to deal with bullying behavior and workplace investigations.
• Policies should be regularly reviewed and communicated to employees.

The employer should keep documentation of training, investigation outcomes and complaints in the event of a later claim or WorkSafe investigation.

Whilst the Panlock case is an extreme one, employers should be aware that bullying can happen in any workplace. Appropriate steps should be considered to reduce the risk of bullying occurring and how to manage such cases if they arise.

This article is available in full at Mondaq.