Has bullying been accidentally redefined by “Brodie’s law” and
what does it mean for the workplace?
Background facts
There has been much said in the media about the new “bullying legislation” introduced in Victoria recently. But what are the facts? The more I investigated the more questions came to mind:
- How is the new legislation relevant to bullying in the workplace?
- Should we adapt our policies to reflect the new definition of bullying?
- Will it change the language of reported bullying claims to fit the new law?
- Should we do more to prevent bullying in the workplace?
I would like to share with you some of my discoveries, predictions for the future implications of this development, and suggestions for how employers can make changes for the next wave in the battle against bullying.
The Crimes Amendment (Bullying) Act 2011, which became law on 7 June, has been referred to as “Brodie’s law”, because it was triggered by the reaction to the case of 19 year-old Brodie Panlock – a waitress at Café Vamp in Hawthorn who, as found by a Coroner’s inquest, committed suicide after being bullied by three of her
co-workers in 2006.
WorkSafe successfully prosecuted the three individual employees, the manager and their employing company under the OHS Act 2004. They were convicted and fined a total of $335,000 in 2010. Magistrate Lauritsen described the working environment at this café as “poisonous and the persistent bullying of Ms Panlock was in the worst category, yet nothing was done to stop it”.
Prosecutions and convictions
In the last 10 years there were ten other cases of bullying prosecuted under the OHS Act by WorkSafe, with seven of these resulting in convictions and fines. The total of all these fines during the last decade was about $120,000, so the Café Vamp case clearly stands out in the severity of punishment, quite justifiably since it had a catastrophic consequence. But in many of these cases the stories were just as chilling and involved physical assaults, from shooting nail guns, spraying flammable liquid, lifting someone by their overalls with a crane, using grease guns inappropriately to inflict pain, humiliation, and so on.
What is puzzling is that in each of these “bullying” cases, the descriptions of the behaviours clearly resembled physical assaults. There are clear provisions in the Crimes Act for prosecuting someone who, “assaults or threatens to assault another person with intent to commit an indictable offence,” with the assault being defined as, “the direct or indirect application of force by a person to the body of, or to clothing or equipment worn by, another person where the application of force is (…) with intent to inflict (…) bodily injury, pain, discomfort, damage, insult or deprivation of liberty”. And yet, none of the bullying incidents were dealt with as assaults under the Crimes Act.
While bullying has an obvious psychological component and the OHS Act has defined health to explicitly mean “psychological health” in Victoria since 2004, there has never been a successful prosecution for any incident not involving physical violence under this legislation. It will be interesting to see if the changes to the Crimes Act will lead to more prosecutions for the more subtle forms of bullying that solely involve psychological harm. In any case, the probability of it happening has just increased.
The new law
The Government introduced the Crimes Amendment (Bullying) Act in response to the public concern that the individuals involved in the Café Vamp case did not face criminal charges despite being convicted under the OHS Act.
It is important to note that there was a clear reference to bullying in the name of this amendment and in the second reading speech by the Attorney-General, the Hon. Robert Clark, when introducing the Bill. Mr Clark stated that bullying will now be charged and punished with “the full force and stigma of the criminal law”, with serious bullying conduct being punishable by up to 10 years imprisonment.
The section of the Crimes Act that was amended, however, related to stalking. This offence already had fourteen different definitions and this latest amendment added four more:
- 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.
Further, the amendments to stalking definitions also broadened the description of a ‘course of conduct’ to include any conduct “that could reasonably be expected to cause physical or mental harm to the victim, including self-harm; or to arouse apprehension or fear in the victim for his or her own safety or that of any other person with the intention of causing” the above harm. The Act now expressly provides that, for the purposes of this offence, mental harm includes psychological harm and causing the victim to engage in suicidal thoughts.
What’s in a definition?
These changes have interesting implications for our understanding of what bullying means in the workplace. The intent of this Act clearly was to provide for the prosecution of serious bullying under the Crimes Act. It has clearly signalled that the above definitions of stalking are interchangeable with bullying, or at least its serious category. This may lead to the distinction between other ‘less serious’ bullying as defined by WorkSafe’s guidelines in the workplace – possibly an unintended and unfortunate consequence of this amendment, as there is evidence that all bullying can have serious negative effects on the individuals and organisations.
The new definition of serious bullying/stalking has also inadvertently introduced the notion of intent, which the WorkSafe definition specifically excludes. The WorkSafe guidelines state that “whether it is intended or not, bullying is an OHS hazard”. Up until now we clearly differentiated between the impact (used as one test of whether an offence has occurred) and intent (which was irrelevant despite the accused often objecting that they did not intend to cause harm or risk).
The agreed definition of bullying by the Victorian and NSW WorkSafe provided in their joint publication 1 and its prior editions is as follows: “Bullying is repeated unreasonable behaviour directed towards a worker or group of workers that creates a risk to health and safety.” The OHS Act already defines health as including psychological and physical health, and in that regard these definitions converge with ‘mental harm’ in the Crimes Act. There is obviously some confusion between the words “psychological” and “mental”, as one sometimes includes the other, and vice versa, or they are used interchangeably (but this is a topic for another article). The more important aspect of the definition of harm is “suicidal thoughts”.
Some predictions
My prediction is that these words will emerge in the language of bullying allegations, and a possible side effect of this is that managers’ fear of such allegations will increase. An employee mentioning that they entertain suicidal thoughts could be taken as a veiled warning that they are implying that serious bullying is taking place. It is important to remind managers that they need to courageously manage performance and behaviour in the workplace in accordance with organisational values and policies. The issue of mental harm including self-harm is related to the code of conduct that could reasonably be expected to cause such harm and the intention to cause it. If a manager respectfully applies reasonable organisational policies they will not constitute bullying (or stalking for that matter).
Any warning signals of a mental health issue needs to be taken seriously within the workplace and it is a timely reminder that there is a desperate need for greater awareness of mental health and skills to deal with it – how to support them appropriately, how to adjust the workplace reasonably for them while at the same time balancing the needs for privacy and confidentiality, business needs, and the knock-on effect to other healthy team members.
Furthermore, changes to the Stalking Intervention Order Act (2008) also mean that someone who believes they are intentionally being bullied in the workplace, to the extent that it causes them potential mental harm, could potentially seek an intervention order against their colleague or manager. We have already observed an increase in intervention orders involving workplaces last year and this pattern is likely to continue.
Implications for the workplace
The new Act will hopefully lead to an increased awareness of bullying in the workplace and its negative effects on employees’ health and safety, as well as organisational effectiveness. To combat the possible flow on effect of increased fear of criminal charges and intervention orders, it is a good time to review the policies to at least do the following:
- Include the new references to the bullying definitions implied by the amended Crimes Act 1958;
- Ensure that there are clear guidelines for managers to manage mental health issues if they emerge;
- Review issue resolution processes to ensure that interpersonal conflict is resolved early and so that employees’ trust in those processes is maintained; and
- Build risk management processes into our everyday work systems for preventing and managing all sorts of psycho-social hazards, including bullying.
It is also a welcome opportunity to refresh awareness, communication and training initiatives in this area so that everyone is aware of their responsibilities for psychological health and safety of their own and others in the workplace.
Most importantly, though, we need to relentlessly pursue the development of positive and respectful work environments so that work can be inspirational and uplifting. Personally, for me, this means something very tangible. It means an everyday focus on people rather than just processes or outcomes. It also means my thoughts, motivation, words and behaviour, and continually developing and implementing strategies for positive cultural change. This is arguably the best possible legacy of “Brodie’s law”.
1 WorkSafe Victoria and WorkCover NSW, Preventing and Preventing and responding to bullying at work, 2009
 
© ResolutionsRTK 2011 | Ezine | Volume 5 | Issue 2 | July 2011
|
