Workplace bullying questions to WorkSafe

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.

Kevin Jones

1 thought on “Workplace bullying questions to WorkSafe”

  1. Thanks Kevin, there is one inconsistency in WorkSafe\’s argument. They concede that they were considering reckless endangerment which carries a potential for imprisonment of up to 5 years – yet then say they felt the lower jurisdictional limit for fines in the Magistrate Court was adequate?? This is not logical.

    The “lawyers” answer to this would be that given the inadmissible nature of some of the evidence (which WorkSafe say swayed them not to pursue the higher charges) then the court could only impose a penalty on the basis of the evidence before it.

    While I concede that it is easy to criticise from a distance and obviously the issues are not simple, there appears to have been admissible evidence that:

    •Brodie had already attempted suicide and was in a fragile mental state;
    •A fellow employee at the cafe had warned at least one of the defendant’s only a couple of days before her suicide that if you “keep this up and you will have blood on your hands”
    •The abuse and mistreatment continued unabated – including putting rat poison in her bag (her first suicide attempt involved taking poison) and telling her to do it properly next time!

    A review of the media reports includes a lot of telling comments which would seem, on the face of it, to be admissible evidence if given by the relevant person.

    The material suggests a strong case for “recklessness”. It might be argued that WorkSafe opted for the “bird in the hand” certainty of a guilty plea and an easy score on the board rather than test the law on what would appear from the publicly available information to have been more appropriate charges.

    Even if WorkSafe did not believe it could sustain a reckless endangerment charge, there would seem to have been ample evidence to justify the higher jurisdictional limit for fines that would have been available if the charges had been prosecuted in the County Court rather than the Magistrates Court. In fact I (perhaps mistakenly) had understood that there was a policy decision within WorkSafe that fatalities should be dealt with in the higher court. If such a policy does exist, why was an exception made for this case?

    There may be other legal issues which would arise in a reckless endangerment prosecution, I have in mind some shortcomings in the drafting of the relevant section in its application to a death occurring outside the workplace, but WorkSafe have not raised those issues so presumably they were not factors which WorkSafe considered would have prevented a successful prosecution. If WorkSafe did consider these factors as problems they should be moving to amend the section.

    WorkSafe need to demonstrate their commitment to successfully pursuing bullying cases where they actually do the heavy investigative work. The \”successful\” prosecution in these matters was off the back of a coroner\’s inquest. Their subsequent success in obtaining an enforceable undertaking from a Council on bullying matters followed a successful unfair dismissal claim by the bullied employee. WorkSafe have a chequered history in bullying cases having been severely criticised by the Ombudsman for the inadequacy of their investigations into bullying allegations in Victoria Police.

    I look forward to seeing some cases where WorkSafe takes the matter from complaint to successful prosecution without the work having to be done by a Coroner or personal legal action by the victim. This is an important area and we need WorkSafe to show that
    (a) the law not only works; but
    (b) it is being diligently policed and enforced.
    Too many lives and families are destroyed by the scourge of bullying.

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