Following the successful prosecution of four people for bullying 19-year-old Brodie Panlock, SafetyAtWorkBlog, with the assistance of a lawyer put several questions to WorkSafe Victoria about the case. Most of the questions and their responses are below:
“SAWB: Could you please advise the reasons for the decision to prosecute the recent workplace bullying case in the Magistrates Court as opposed to the County Court? My understanding is that this choice limited the potential fine for the individuals involved to 500 penalty points instead of 1800 , and for the company to 2500 instead of 9000.
WV: In this case, we thought the Magistrates’ Court had the appropriate sentencing discretion to impose a proportionate and fair sentence.
In addition, Magistrates’ Court proceedings takes less time and produce more certain results than County Court proceedings – these charges were issued in July 2009 and resolved in February 2010. Our expectation is that County Court matters could take up to three years to resolve. Our view was that it was in the interests of the family and those affected by the circumstances to bring the case to court as quickly as possible.
SAWB: I also understand that the case could have been presented as a breach of section 32 of the OHS Act 2004 where a finding of “reckless endangerment” could have led to a jail term of up to 5 years. Is there any particular reason for WorkSafe not to have tested this option in the recent workplace bullying prosecution?
WV: At all stages of this prosecution, WorkSafe received independent advice from counsel. MacAlpine and Smallwood were both considered for charges under section 32. A prosecution under section 32 requires evidence beyond reasonable doubt that a person intended (or was recklessley (sic) indifferent to) the fact that their actions would place another person in danger of serious injury at a workplace. There was insufficient admissible evidence to proceed with charges under this section.”
A core element in the success of the Federal Government’s move for harmonisation of occupational health and safety law in Australia has all along been listed as a consistent and harmonised enforcement policy by the State OHS regulators. This still requires considerable work as some States have Industrial Magistrates and Industrial Courts, most do not. The decisions above on the suitability of the County or Magistrates’ Court indicate the options faced by one regulator.
In the bullying prosecution above, it is worth noting that considerable evidence was collected through the State Coroner’s inquest into Brodie Panlock’s suicide in 2008 and that this may have played a part in WorkSafe’s investigation processes.
Many thanks to WorkSafe Victoria for their response.