OCCUPATIONAL HEALTH, SAFETY AND WELFARE
The OHS&W Act deals with the general wellbeing of employees at work and the prevention of work related injuries and illness are both matters related to occupational health, safety and welfare. Section 4 (4)(a)&(b) Incidences of workplace bullying can have an adverse impact on the psychological wellbeing of an employee, and prolonged bullying often manifest as physical health issues for the aggrieved party. As such, matters of workplace bullying fall within the jurisdiction of the OHS&W Act.
A person, who is the subject of bullying behaviour, can make a complaint to SafeWork SA. SafeWork SA will investigate and ensure the employer and employees meet their obligations under the OHS&W Act. An OHS inspector does not mediate between the employer and employee or between the bully and bullied person(s). However, the OHS Inspector may refer the matter to the Industrial Relations Commission for conciliation or mediation.
The OHS&W Act places a duty on employers to ensure as far as reasonably practicable, that employees are safe from injury and risk to health while at work. Section 19 (1) This requires the employer to actively take steps to prevent incidents that may injure an employee or place the health of an employee at risk. Also to take steps to minimise or reduce risks, when elimination of the risk is not possible.
In regard to workplace bullying, the duty also requires an employer to investigate complaints (relating to any staff member), address and document the issues raised, and to take appropriate action when necessary. An employer who does not take reasonable steps to reduce or eliminate bullying in their workplace may be in breach of the OHS&W Act and be liable to penalties prescribed by section 19 of the Act. The maximum penalty for breaching an employer’s duty under the OHS&W Act is $100,000 for the first offence and $200,000 for subsequent offences.
Employees have a duty under the OHS&W Act to take reasonable care to avoid adversely affecting the health and safety of any other person through an act or omission at work. Section 21 (1a) This duty by an omission means an employee may actually be in breach of the Act by failing to act where appropriate. Such action does not necessarily mean an employee must directly intervene when they become aware of workplace bullying. In some circumstances it may be more prudent to bring the matter to the attention of the appropriate person within the workplace.
All staff should be made aware of their duty toward fellow employees, particularly those staff in positions of authority, whose actions and messages to lower status employees may have a more significant impact than anticipated or intended. The maximum penalty for breaching section 21 (1a) of the OHS&W Act is a fine of $5000.
Responsibilities of All Persons
When a person (who could be an employer or employee) has actual knowledge that another person’s health and safety are being endangered, and is recklessly indifferent as to whether this person is being endangered, that person could be liable for committing an aggravated offence. Section 59Offences under this section are considered very serious. They are minor indictable criminal offences, and carry a maximum 5 year term of imprisonment, and/or double the prescribed penalty. Whilst this section would only be used in extreme circumstances, it could be actioned if an employer (or employee) was involved or complicit in, serious bullying behaviour in the workplace.
Bullying behavior can involve elements of discrimination. The types of discrimination covered by South Australian Equal Opportunity Act 1984 include disability, race, sex, age, sexuality, pregnancy and marital status. Employees being bullied on any of these grounds can make complaints to the Equal Opportunity Commission, who will attempt to resolve the complaint privately by conciliation. If settlement cannot be reached, cases can be referred to the Equal Opportunity Tribunal for a public hearing and decision.
Under discrimination laws, all types of employees are covered, including casuals, volunteers and those on contract or probation. Employers are vicariously liable for the actions of their employees towards each other or to customers. The Commission's website (www.eoc.sa.gov.au) has an extensive section ‘EO for business’, containing detailed information about how to manage your equal opportunity obligations.
Though the Workers Rehabilitation and Compensation Act 1986 does not mention bullying specifically, psychiatric disabilities caused by bullying at work, are compensable, if and only if, the employment was a substantial cause of the disability. An employee may make a claim for compensation regarding any compensable injury that arises out of, or in the course of their employment. For more detail refer to section 30A of the Workers Rehabilitation and Compensation Act 1986.
APPRENTICESHIPS AND TRAINEESHIPS
In South Australia, contracts of training are the legal basis for traineeships and apprenticeships, which are governed by the Training and Skills Development Act 2003 (the T&SD Act). Contracts of training and the T&SD Act set out some of the rights and responsibilities of employers, trainees and apprentices. For example, the contract of training requires employers to meet all legal requirements, including occupational health and safety requirements.
It also requires employers, trainees and apprentices to try to resolve any complaint, grievance or dispute between themselves. If they can not resolve the issue, they are required to contact Traineeship and Apprenticeship Services to request assistance or to access the appropriate dispute resolution processes.
There is no specific provision in the Fair Work Act 1994 that deals with workplace bullying, however, where an employee is dismissed or forced to resign as a result of workplace bullying, the worker may be entitled to make a claim under the unfair dismissal provisions of that Act.
Where it can be demonstrated that an industrial dispute exists between an employer and employee and all of the necessary requirements of the Act have been met, a notice of industrial dispute can be lodged with the Industrial Relations Commission of South Australia to seek its assistance to resolve the dispute.
Workplace bullying may also amount to criminal behaviour in breach of various criminal legislation. Examples include assault and unlawful threats.