The grotesque treatment of a teenage apprentice over two years at Geelong-based construction company Quality Carpentry and Building Maintenance was reported in several outlets earlier this week. The apprentice, who was 16 when he started, faced two years of physical abuse (hot drill bits held to his skin, his face scraped with sandpaper, liquid nails spayed into his hair) and humiliation (at one stage, his employer, who “encouraged” and “participated in” much of this behaviour, snatched the apprentice’s phone to post sexually explicit messages to a female friend’s social media page).
The damage done to the apprentice has long outlasted the injuries he suffered. “I would rather be burnt, bruised, assaulted, drenched in glue, water, paint, weeks’ old coffee and spat on all over again than to relive a week of the psychological torment I endured,” he told the court.
But what is bullying under the law, and what can an employee do about it?
What is bullying?
Section 789FD of the Fair Work Act defines bullying as:
- “a person or a group of people repeatedly behaves unreasonably towards a worker or a group of workers at work; AND
- the behaviour creates a risk to health and safety.”
Of particular importance in the above is the word “repeatedly”, and the “and” linking the behaviour to a deterioration in the worker’s health and safety. No matter how intimidating or unreasonable the behaviour, if it’s a one-off, it could qualify as a breach of workplace safety, it could be discrimination or sexual harassment, but it’s not bullying. Further, the word “risk” means that a worker doesn’t have to necessarily prove that the conduct caused mental or physical damage, only that it created the risk of it.
What can an employee who feels they’re being bullied do?
It depends, says national head of employment law Services for Maurice Blackburn Josh Bornstein. A worker can apply to the Fair Work Commission for a “stop bullying” order.
“Federal legislation is limited to a situation when an employee is currently being bullied and wants an order issued to force it stop,” Bornstein told Crikey.
However, workplace bullying doesn’t just breach the federal Fair Work Act. It often breaches state-based occupational health and safety laws.
“OHS laws often deal with past events, but an individual can’t bring action under those law. It relies on the regulator, in this case WorkSafe, to investigate and prosecute,” Bornstein said.
In the Quality Carpentry case, for example, business owner Wayne Allan Dennert was fined $12,500 and ordered to pay $757.51 in costs under the Victorian Occupational Health and Safety Act 2004 in Geelong Magistrates’ Court, for failure to provide a safe workplace.
I’ve read the list of what happened to the apprentice, and $12,500 plus costs doesn’t sound like much.
“The fines can be a lot higher than that in really serious cases,” said Bornstein, citing the case of Brodie Panlock, a 19-year-old waitress who was bullied and took her own life in 2006. Four of her co-workers were fined collectively $335,000.
“But prosecutions are fairly rare,” Bornstein said. “And the fine doesn’t go to the victim. My view is that the regulator doesn’t generally handle bullying well. My preference would be that it was more proactive when it comes to bullying, rather than entirely responsive.”
Bigger payouts are available to those who can hire a lawyer to pursue the matter in civil court.
“Someone who has suffered serious psychiatric injuries can sue an employer for damages,” Bornstein said. “For example, we represented Kate Mathews, who was bullied and sexually harassed, and she was awarded over $1 million.”
Fines under workplace safety legislation in general are often at the lower end. Early this year, national engineering companies Frankipile and Vibropile were collectively fined $1.5 million when they were found to have been responsible for the death of a man at a Southbank work site. Even a case that serious needed an appeal from the Victoria’s Director of Public Prosecutions to bring about a fine so high — it was initially $450,000 between the two.
Are the penalties greater under the Fair Work Act?
No. Assuming you can prove that you’re being bullied and that there is a risk it will continue, the most the Fair Work Commission can do is issue the “stop bullying” order. The commission can’t award damages, nor impose fines.
What if the employee has been fired, or left the business?
Then the risk of ongoing bullying is considered nil, and the commission can’t make an order.
Is the law improving for workers who have been bullied?
Marginally, says Bornstein.
“The stop bullying orders are definitely a vast improvement,” he said. “Before that, people were left to a state regulator who was unable to deal with the volume of claims, rarely investigated, rarely prosecuted and when it did, it was often years later, after the victim’s health was already ruined.”
“So the system is far from perfect, but the law is improving.”