Under laws expected to be introduced to Victorian Parliament on Thursday, serious workplace bullying and cyber bullying will be added to the Crimes Act provisions governing stalking, with penalties of up to 10 years' jail.
Bullying – defined by the Law Reform Commission as menacing, harassing or intimidating conduct that causes physical or mental harm – came into the spotlight in Victoria following the death of 19-year-old Melbourne waitress Brodie Panlock, who committed suicide in 2006 after experiencing severe bullying at the hands of her colleagues.
Michael Byrnes, special counsel in workplace relations at Clayton Utz, says it is not a fait accompli the state laws would become nationwide.
Byrnes says while the Victorian push is "well intentioned", it's not yet clear how it will work in practise.
Byrnes says while bullying is currently dealt with under the Occupational Health & Safety Act, the Baillieu Government is making it a crime under the Crimes Act.
"The difficult question is how bullying is going to be defined, and given the serious consequences and penalties involved, that will need to be precisely done," Byrnes says.
One issue for employers is how to deal with an employee found to have bullied another employee.
While Byrnes says an employer has an absolute right to protect its staff, in particular from cultural systemic bullying, there may be instances where a termination arising from bullying could be challenged in an unfair dismissal case.
Melbourne lawyer and adviser Peter Vitale says SMEs will need to be conscious of not only the workplace bullying laws, but changes to national occupational health and safety laws which will be in place by the end of the year.
"The changes to the law are intended to open up opportunities for police to step in and investigate and charge," Vitale says.
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