Performance Management (GROUP)
Bullying - is it a crime?Share By Catherine Brooks | August 9, 2011 at 12:31 PM
The Victorian Government has recently taken the step of criminalising certain bullying behaviour through the expansion of the definition of “stalking” in the Victorian Crimes Act. It is now a crime in Victoria for a person to engage in threatening, abusive or offensive conduct, amongst other things, with the intent of causing another person:
• physical or psychological harm (which includes suicidal thoughts),
• fear or apprehension as to their own safety or the safety of others, or
• to engage in self-harm.
The changes to the Victorian criminal law came about as a result of the well-publicised Brodie Panlock case in which three café employees were found to have breached Victoria’s occupational health and safety laws by repeatedly bullying Ms Panlock, a waitress at the café, until she took her own life. The three employees were fined collectively $85,000. The café and its director were also fined $220,000 and $30,000 respectively for failing to have in place safe systems of work to prevent and address bullying behaviour which was putting the health and safety of others at risk.
The criminalisation of certain bullying conduct in Victoria only applies to the behaviour of individuals, not employers, however employees who are subject to bullying behaviour from other employees (or anyone else in the workplace) can obtain an intervention order (an order preventing the alleged bully from being in physical proximity to the victim) which employers would need to manage in the workplace.
Employers in other states and territories should be aware that current definitions of stalking and other criminal conduct (such as assault) may mean that certain bullying behaviour is a crime right now and, in the future, may be expanded to capture the type of behaviour which has just been criminalised in Victoria.
Ai Group Legal has experienced a rise in claims associated with social media being used as a tool by employees to bully, harass and discriminate against other employees.
Recent case law has forced Fair Work Australia to consider the impact of social media in this area. The tribunal issued a warning to employees (in Fitzgerald v Smith T/A Escape Hair Design  FWA 7358) that information posted on social networking sites can come back to haunt them and that Facebook comments may impact the employment relationship, even if comments are posted out of work hours.
As in the education arena, social media has broadened access to individuals, giving bully’s access to employees off-site and after hours. This makes it difficult for the employer to monitor behaviour and conduct of its employees.
One of the ways in which a company can counter this is by having in place a clear and accessible process for employees to report the abuse of these mediums.
Further, it needs to be widely known within the company that inappropriate use of social media will not be tolerated. If Fair Work Australia finds that there is a certain level of tolerance of such behaviour within a workplace, liability may, at least partially, rest with the company, rather than just with the perpetrator.
As such, disciplinary procedures must be followed where there is evidence that such behaviour has occurred and investigations into such conduct must be carried out swiftly to avoid the behaviour being ‘condoned’ by inaction.