Most people would be aware of the death of young Victorian café worker, Brodie, who took her own life after being bullied in the workplace. This incident caused the Victorian Government to draft and pass a set of new laws (commonly known as Brodie’s Law) to criminalise bullying conduct and impose harder penalties on individual bullies.

As bullying can occur in the workplace, the operation of these laws and their consequences have the capacity to impact on employers and the way they manage employee complaints.

What is Brodie’s Law
Brodie’s Law is the name given to a set of amendments to the Crimes Act which make engaging in certain types of bulling behaviours a form of stalking. As a result, victims of bullying can apply for the same protections as if they were victims of stalking (such as intervention orders) and bullies can face the same penalties as those convicted of stalking.

Bullying as a form of stalking
It is a crime for one person to stalk another.

Stalking involves engaging in a “course of conduct” for the purposes of causing physical or mental harm to a victim or arousing apprehension or fear in the victim for their own safety or that of another.

This “course of conduct” now includes engaging in the following types of bullying behaviours:

• Making threats to the victim;
• Using abusive language or offensive words to, or in the presence of, the victim;
• Performing abusive or offensive acts in the presence of the victim;
• Directing abusive or offensive acts towards the victim.

In addition, the bullying conduct may now also amount to stalking if it causes the victim to self harm.

Intervention orders
A victim of bullying conduct can now apply for an intervention order in the Magistrates Court. A person found to have breached an intervention order can face penalties including imprisonment for a maximum period of 2 years.

How does this impact employers?
While these laws are trying to make individual bullies personally accountable for their actions, given that bullying can occur in workplaces, these laws can also have an impact on employers and how they respond to employee bullying complaints.

Positives

• The existence of these new laws can assist employers to emphasise the unacceptability of bullying behaviour, wherever it occurs;
• Bullying conduct that is occurring outside of work can now be addressed externally, taking the burden off the employers to try and manage conduct that is outside the workplace;

Negatives

• If an intervention order is obtained, then the employer may be required to facilitate the compliance of the intervention order, even if it requires reorganising certain elements of the workplace or work systems. For example: varying rosters, moving offices, changing supervisors. Taking steps with which a victim disagrees (such as relocating them and not the alleged bully) may also expose the employer to other risks.

• As these are criminal laws, workplace investigations into bullying complaints could become relevant to, and admissible in, any subsequent criminal investigations that may occur.

How you can manage these issues:

1. Remember that a bullying victim obtaining an intervention order does not replace employers’ obligations under OHS law to ensure a safe workplace and respond to OHS risks (including bullying complaints) in the workplace;
2. Always treat bullying complaints seriously;
3. Review investigation processes and procedures, including the circumstances in which an external party should be engaged to conduct an investigation; and
4. Do not hesitate to seek advice as needed.

The team at Zeitz Workplace Lawyers can assist you with any workplace issues you may have including bullying. Please do not hesitate to give Susan, Nandi, Simon or Sarah a call to discuss any of these matters further.

Disclaimer – This update is intended to provide commentary and general information only. It must not be relied upon as legal advice. Formal legal advice should be sought in relation to any matter arising out this update.