The Work Health and Safety Act (SA) 2012 provides for significant penalties for businesses, officers of those businesses, workers and other persons who fail to take care to ensure the health and safety of people at work.
In the past the great majority of prosecutions for breaches of workplace health and safety laws have been brought against employers or businesses who fail to comply with their obligations under work health and safety law.
However, recently, Safework SA successfully prosecuted two employees of an electrical business who had bullied a young apprentice. The SA Employment Court found these two workers guilty, imposed significant fines on them and entered a criminal conviction against them.
The facts about the case of the 19 year old apprentice at Tad Mar
Courtney was a 19 year old first year apprentice with an electrical company, Tad Mar. He was supervised by a leading hand/supervisor C, and the site manager, R.
R had worked in the electrical industry for around 30 years and C for around 9 or 10 years. C gave evidence that he had been bullied himself when he was a young apprentice.
On the day on question, during lunch in the lunchroom, R squirted some flammable liquid on a piece of cardboard and lit it before dropping it onto the floor and stamping the flames out. Soon after this C – who had allegedly been bullying Courtney for several months - approached Courtney and squirted the flammable liquid onto Courtney's work boot, and then lit it with his cigarette lighter. The flame went out fairly quickly.
After this C squirted the flammable liquid onto the crotch of Courtney's work pants. Understandably, Courtney became frightened and ran to the other end of the lunchroom. C pursued him and pinned him to the wall while flicking his lighter towards him. Courtney was begging C to stop and, as C turned away, Courtney ran out of the lunch room. However, both C and R pursued Courtney and, when they caught him, C squirted more of the flammable liquid onto Courtney's polyester work shirt and reached forward while flicking his lighter. Courtney's shirt caught fire and produced flames. R – who, as detailed above, was the most senior manager present, and, with around 30 years experience in the industry, was clearly a mature person - then took the bottle of the flammable liquid from C and squirted more liquid onto Courtney's shirt producing more flames.
Courtney waved his arms around and held his shirt out from his body and, thankfully, the flames were extinguished. Courtney suffered some singed hair on his left arm and hand but luckily did not suffer any burns to his skin. However, obviously, he could have suffered serious burns.
Consequences of the incident
Subsequent to these events both C and R lost their jobs (but soon found other employment). Safework SA investigated the incident and elected to prosecute Tad Mar, as well as C and R for failing in their obligations to ensure the health and safety of other workers at work, and being reckless as to the risk of serious injury or death to a co-worker. R was also prosecuted for failing to take any action to stop C, which, as the most senior manager present, was clearly his responsibility.
Both C and R pled guilty and were fined $21,000 and $12,000 respectively. (Somewhat surprisingly, in our view, C was given the largest fine. Although he was a major protagonist in the incident, in our view, R’s authority and responsibility as the Site Manager arguably meant that his wrongdoing was as serious, if not more serious than C’s.)
Both C & R argued that no conviction should be entered against them given that they were genuinely contrite for their actions, and that there was no risk of them reoffending. The Judge acknowledged that there was little risk of either of them reoffending but, nevertheless, felt that it was important to "send a message" to the community that such conduct would not be accepted and, for that reason, entered a conviction against each of them. (This means that both C and R now have a criminal record which can have significant consequences. For example, it may prevent them from securing certain types of employment and might prevent them from securing visas to enter certain countries if they wish to travel.)
While the fines were relatively modest compared to the maximum fines that could have been imposed, we expect that the impact of those fines on both C and R was significant.
It is interesting to note that in his submissions to the Court, C said that he himself had been bullied when an apprentice. We understand that, in some industries “hazing” of apprentices is sometimes seen as a “rite of passage”.
This case demonstrates that Safe Work SA will not hesitate to prosecute ordinary workers if they fail to comply with their obligations to ensure the safety of themselves, and their co-workers while at work. Furthermore, it demonstrates that Safe Work SA will take action to punish the worst examples of workplace bullying.
What can I do if I am bullied at work?
For workers who have been bullied at work, the first step to try to stop the bullying is to make a formal complaint or report to their employer. Most employers today will take complaints of bullying seriously, if only because they could be prosecuted if they fail to do so. If this does not help, the legal options available to a bullied worker are relatively limited but include:
- a complaint to SafeWork SA which could lead to a prosecution of the bullies - although a prosecution is a slow process and can take several years, and will not provide any compensation to the bullied worker;
- a “stop bullying” application to the Fair Work Commission – the Fair
Work Commission can hold a conference with all parties to try to put an end to the bullying – this can be a relatively quick process and is designed to prevent the bullying from continuing. However, no monetary compensation is available to the bullied worker;
- if the bullied worker is unable to continue working and has been diagnosed with a psychiatric injury (such as depression, anxiety, PTSD or an adjustment disorder) they can lodge a workers compensation claim; or
- in some circumstances, if the bullied worker has reported the bullying to their employer and their employer has failed to take action, the worker could argue that their employer’s failure to take action amounts to a “constructive dismissal” and bring an unfair dismissal claim. However, if you are considering this option you should seek legal advice first.
If you have been subjected to any bullying at work or if you are the subject of a Safe Work SA investigation please do not hesitate to contact the writer Margaret Kaukas, Special Counsel or our workplace relations team.