New bullying legislation
June 8, 2011
The Victorian State Parliament has introduced a Bill called the Crimes Amendment (Bullying) Bill 2011 (the legislation). The legislation is intended to outlaw bullying and cyber-bullying in the workplace, with offenders facing up to 10 years of jail time. It has been dubbed “Brodie’s law” in honour of victim Brodie Panlock who committed suicide in 2006 after co-workers bullied her at a Hawthorn café.
The legislation has passed through the Legislative Assembly and is currently in its second reading by the Legislative Council. As it is an amendment to the Crimes Act 1958 (Vic), it is directed at employees who engage in bullying and does not relate to employer obligations to employees in their workplace. This is a departure from the current legislation that deals with workplace bullying in Victoria (Occupational Health & Safety Act 2004 (Vic)) which holds employers responsible and accountable.
Rather than define workplace bullying as a completely new offence, the Victorian Government has chosen to extend the existing definition of stalking to include behaviours that are typical of workplace bullying 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;
- directing abusive or offensive acts towards the victim;
- acting in any other manner that would reasonably be expected to cause a victim to engage in self-harm.
If an employee is found guilty of an offence the employee could face up to ten years imprisonment. However, this will only be a deterrent to employees engaging in bullying in the workplace if they are aware of the serious penalty. The introduction of this legislation means that more types of bullying are being criminalised and public awareness of bullying in the workplace will be increased due to the publicity surrounding the legislation. This means that employers are likely to face a rise in complaints of bullying and harassment in the workplace, not just in Victoria, but also in other states as employees become more cognisant of the fact that some forms of bullying could fall within the coverage of stalking laws.
Some employee organisations have expressed the concern that the new legislation may result in employers neglecting their obligations to provide a safe workplace for employees. This will not be the case as the Occupational Health & Safety Act 2004 (Vic) is still relevant and applicable in Victoria, along with other similar legislation in other states.
Employers, irrespective of which state they are in, need to continue to take workplace bullying seriously by ensuring that their anti-bullying policies and procedures are up to date and regularly communicated to all employees. Furthermore, employers need to ensure that they respond to bullying complaints in a measured, fair and objective manner as any dismissal in relation to a bullying claim can be challenged as an unfair dismissal. The investigation of a bullying complaint and how the complaint is managed is another important facet of an employer’s arsenal in preparation for dealing with bullying complaints.
Livingstones can assist in the process of reviewing workplace bullying policies and procedures to ensure their effectiveness. Livingstones can also assist employers implementing appropriate response mechanisms to ensure that the investigation of bullying complaints, which could potentially lead to the termination of an employee, is undertaken in a manner that limits the risk of an unfair dismissal claim being upheld by Fair Work Australia.
For more information on any matters associated with workplace bullying please contact Edwina Kaupa.
