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Case Summary

Criminal conviction for a bully employer

WorkSafe Victoria v Harry Kim Pty Ltd (2022)

Time and time again we see bullying cases arising in an employment law context, but employers often forget these offences can also lead to criminal charges and prosecution under safety law.

Nina Hoang
Published:

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The case in-brief

On 12 May 2017, a retail consultant employed by Harry Kim (a women’s clothing retailer) hurt her back, requiring time off work.

Over the next two months during the employee’s recovery at home, the Director abused her through phone calls and text messages and attempted to confront the employee in person on several occasions.

The bullying behaviour included:

  • suggestions the back injury was fake;
  • questioning the employee’s ethics and reliability;
  • claiming the employee was not entitled to WorkCover payments;
  • questioning the employee’s previous workers’ compensation history;
  • threatening the employee;
  • calling the employee fat and blaming the employee’s weight for the injury;
  • showing up unannounced at the employee’s house, and trying to gain entry while accusing the employee of faking their injury; and
  • texting the employee “you make me sick.”

The employee was unable to return to work due to anxiety and depression, caused by the bullying.

WorkSafe pursued the company and the individual Director for breaches of sections 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (VIC) on account of the Director’s bullying of an injured employee.

Was this a pattern of targeted bullying behaviour?

Unquestionably, this was a pattern of targeted bullying behaviour and the employee would have likely succeeded if she had decided to bring a general protections claim or a stop-bullying order (during the time she was still an employee of the company).

The Magistrates Court found:

  • the employer had no processes and policies to identify, prevent or manage bullying within the workplace; and
  • there was also no mechanism or process allowing employees to raise concerns about bullying.

The employer was convicted and ordered to pay a fine of $10,000 and costs of $10,308, whilst the Director was required to:

  • donate $2,000;
  • apologise to the employee;
  • complete bullying and discrimination training; and
  • be on a good behaviour period for two months.

WorkSafe’s focus on psychological hazards

Worksafe has made it clear they intend to prioritise psychological hazards and mental health, as evidenced through the introduction of the new psychological regulations which come into effect on 1 July 2022.

The introduction of a positive duty places a larger onus on employers to proactively prevent psychological hazards such as bullying. It is unlikely that employers who fail to have the bare minimum in policies and procedures would get away with such a low fine once they come into effect.

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Lessons for Employers

Employers must ensure they are well prepared for the new regulations. Review our guide for employers on protecting your employees from psychological harm which includes practical tips on what you need to do to comply with the new regulations such as:
  • Ensuring your policies and procedures are updated to actively consider psychosocial hazards
  • Ensuring you have a prevention plan for instances of aggression, bullying, high job demands, sexual harassment, and exposure to traumatic events
  • Providing training for all employees on how to identify psychosocial hazards, how to intervene, and the duty to report.

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Principal Lawyer and Head of Workplace