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Brodie’s Law: changes in the way Courts will treat workplace bullying

Since the start of this year I have been conducted over a dozen anti-bullying and harassment training courses to organisations, both large and small. The leading case I use as a model is the “Cafe Vamp” case involving Brodie Panlock. Recently, her case has sparked a proposed change in workplace laws.

Between 2005 and 2006 Brodie Panlock, 19, was subjected to the humiliating bullying by her workmates at Cafe Vamp, a small cafe/restraint in Hawthorn. Brodie, a waitress at Cafe Vamp, entered into an “off and on” consensual sexual relationship with her manager, Nick Smallwood, however he and his male co-workers commenced a pattern of abuse which lasted over a year. She had been spat on, called ugly and, on several occasions, had fish oil poured all over her hair and clothes. Following an attempted suicide in May 2006, the main tormentor told her to take rat poison because “if you’re going to do it, do it properly”. The employer was not directly complicit in the bullying but took no action and in fact was witnessed on one occasion telling the bullies to “take it out the back” and “tone it down” as the behaviour was in front of customers.

 

Finally, in September 2006, Brodie could take no more and threw herself from a multi-story car park and died instantly. Following advice from the Coroner, Worksafe Victoria investigated the allegations and laid charges under Section 21 (duties of employers) and Section 25 (duties of employees) of the OHS Act 2004 were laid in the Melbourne Magistrates’ Court. The employer and his company were fined $30,000 and $220,000 respectively. The main protagonist, Smallwood, was fined $45,000 and his two co-workers fined $30,000 and $10,000 each, reflecting their level of involvement. The Magistrate also found that ''without an organised induction and in the absence of discussion about inappropriate behaviour, including bullying, gives rise to the suspicion that the level of managerial skill generally exercised by [the employer], in regard to his less skilled employees, was inadequate''.

At the time of the case, Brodie’s parents called for changes to the law so courts can jail workplace bullies. At the time, workplace bullying itself was not an offence under the Crimes Act 1958 and only offences under Section 32 of the OHS Act 2004 had a jail sentence. The new Victorian government has now moved towards making it a specific crime to commit bullying in the workplace by introducing the Crimes Amendment (Bullying) Bill 2011 to the Victorian Parliament.

 

The new Bill appears to take up WorkSafe Victoria’s 2005 guidance on workplace violence and bullying which specifies what elements of the Crimes Act 1958 could be relevant to workplace bullying:

 

  • Intentionally or Recklessly Causing Serious Injury
  • Intentionally or Recklessly Causing Injury
  • Threats to Kill
  • Threats to Inflict Serious Injury
  • Stalking

Each of the above are already crimes outside of employment but will now be specific to the workplace. The inclusion of the last item (stalking) is interesting in a workplace context but might include such behaviour as cyber-bullying, following a worker after work, constantly telephoning, etc. Victoria’s Attorney-General, Robert Clark, spoke about Brodie’s Law in Parliament on April 6, 2011. Mr Clark provided a possible clarification of the process: “Bullying conduct in the workplace is normally prosecuted and punished under the Occupational Health and Safety Act 2004. If, however, the conduct and consequences of the bullying behaviour are extremely serious, the bill provides another response — that of prosecution under the Crimes Act for the offence of stalking.”

 

Brodie’s Law is part of a change in the way workplace bullying and harassment is treated but the real changes need to take place in the workplace. In some workplaces (eg armed services) or employment types (eg unskilled workers, apprentices) bullying and “bastardization” has been institutionalised for many, many years. In this context, the level of organisational and societal change required is massive and will take decades to effect and it isn’t clear whether the new legislation will have the desired effect.

 

The debate on the amendments is set to continue in the Victorian parliament but the next round of workplace bullying discussion and debate will be the release of the draft national code of practice on workplace bullying in the second half of 2011. It will be interesting, given the new OHS harmony laws this coming January, as to how this will impact on the new Victorian legislative model. Watch this space.

 

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