In an important reminder that bullying can result in criminal penalties under work health and safety (WHS) laws, earlier this month a retail fashion store was fined $10,000 and ordered to pay costs of $10,308 after it repeatedly bullied an injured worker.
WorkSafe Victoria prosecuted HARRY KIM Pty Ltd regarding a period of 2 months over which it harassed one of its employees who had suffered a workplace injury to her back, resulting in an ongoing work incapacity.
The Court heard that the employer, both in person and through text messages, was involved in behaviour including:
- yelling at and texting the employee, suggesting that her back injury was not work-related;
- challenging the reliability and work ethics of the employee;
- demanding that the employee provide complete work and workers’ compensation history;
- threatening the employee by saying that “sooner or later [she] would pay for what [she] had done”;
- telling the employee in person that she was fat and had gained weight, which was – in the employer’s view – the ‘real’ reason for the back injury; and
- attending the employee’s home unannounced and uninvited, ostensibly to collect a copy of a shop key, but then shouting abuse at the employee.
The Court was satisfied that the employer had breached its duty of care and was guilty. The breaches by the employer included:
- failing to ensure that bullying behaviour did not occur, and that if it did occur, processes, policies or procedures were in place to identify and respond to it to eliminate or reduce risks to health and safety of employees caused by such behaviour; and
- failing to regulate workplace behaviour or to provide a mechanism to assist employees subject to, or witnessing, bullying behaviour to raise concerns regarding the risks to health and safety caused by such behaviour.
Importantly, the Court accepted the Prosecution’s submissions that a criminal penalty in this type of bullying matter was a necessary part of the functions of WHS laws in order to protect the community. This fact was highlighted by the employee’s victim impact statement, which demonstrated the significant impact that the bullying conduct had on her health.
In fixing the penalty, the Court noted that the bullying conduct was multi-faceted, and included cruel barbs and other aggressive and demeaning behaviours, and the offending continued for a protracted period of time. The Court noted that, although the employer had entered a plea of guilty, it was not at the first opportunity. If a plea had not been entered at all though, the Court indicated a fine of $30,000 may have been imposed.