There have been a number of prosecutions this year that have resulted in workplace bullies being found to have breached their duties under state and territory work health and safety legislation.
Most recently, SafeWork SA successfully brought proceedings against two former supervisors (a site supervisor and a leading hand) at an electrical company who had bullied an apprentice, including setting his clothing on fire.
In the proceedings, the South Australian Employment Tribunal (SAET) heard the leading hand squirted flammable liquid onto the 19-year-old apprentice’s boot, which he then lit with a lighter. The leading hand then squirted flammable liquid on the apprentice’s crotch area, and then chased him down and pinned him against a wall to squirt more flammable liquid on his shirt sleeves. The apprentice’s shirt caught on fire and the site supervisor then squirted more flammable liquid on the apprentice’s shirt, causing more flames. The apprentice had singed hair on his left arm but thankfully had no serious injuries.
Both supervisors pleaded guilty to engaging in reckless conduct that put the apprentice at risk of death or serious injury, in breach of their health and safety duty under the South Australia Work Health and Safety Act 2012.
In sentencing, the site supervisor, who had worked at the company for nearly 30 years prior to his dismissal, made submissions as to his otherwise good character, his lack of offending history and his inability to find another job. While submitting this was a “high jinx gone wrong”, he had immediately acknowledged his wrongdoing and accepted the seriousness of the matter.
The leading hand, who at the time of the incident was 26 years old and had been working at the company for nine years, submitted this incident was a defensive mechanism to deflect from bullying he had himself been victim to in the workplace. He submitted he was deeply remorseful and, now he had found alternative employment, he realised the gravity of his conduct. According to the leading hand, this was “an act of gross stupidity” in the context of poor workplace culture.
The SAET was mindful of the remorse of both supervisors and the consequences they had suffered since the incident. It was also mindful this incident was attributable in part to the “regrettable workplace culture” that had developed at this particular workplace.
However, there was a significant power imbalance in this situation and there was a very real potential that the supervisors’ conduct could have had a devastating outcome.
For these reasons, the SAET held that general and personal deterrence needed to be featured in the penalties. After applying a 40% discount for their guilty pleas, the site supervisor was fined $12,000 (mostly for failing to stop the leading hand) and the leading hand was fined $21,000 (for engaging in the majority of the conduct).
The SAET also recorded convictions against both supervisors noting that to not do so would fail to reflect the seriousness of the nature and circumstances of the offences.
Lessons for employers
The principal lesson to be learnt from this unfortunate matter is workplace bullying is a major work health and safety concern and safety regulators will not hesitate to prosecute employees who act in disregard of their work health and safety duties.
Senior managers have a very real responsibility to set an example for the rest of the workplace, particularly when it comes to the culture of the workplace and the health and safety of their employees.
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