Tad-Mar Electrical supervisor Jeffrey Rowe has been prosecuted by SafeWork SA and fined $12,000 over an incident at a worksite in Adelaide in March 2017.
A fellow employee, Luke Chenoweth squirted flammable liquid on to the boot and shirt of 19-year-old apprentice Austin Courtney and ignited it. Rowe had taken no steps to stop the actions of Chenoweth, and himself squirted more flammable liquid onto Courtney.
The South Australian Employment Tribunal found that the acts and omissions of Rowe were serious and that it is fortuitous that Courtney did not suffer serious injury or worse. At one point, Chenoweth pinned Courtney to a wall and attempted to light his shirt which had been doused in the flammable liquid by the two senior employees.
Rowe’s conviction is the first time section 31 (reckless indifference towards health and safety) has been used to prosecute an individual in relation to bullying behaviour under Australia’s Work Health and Safety legislation. Chenoweth’s case remains before the South Australian Employment Court as does that of his employer.
The similarity between the Australian health and safety legislation and New Zealand’s Health and Safety at Work Act 2015 means this case is likely to impact us closer to home. In New Zealand, WorkSafe could also bring a claim pursuant to the Health and Safety at Work Act 2015 for workplace bullying, and given the current New Zealand statistics we expect to see these prosecutions making their way through the courts.
Of 100 bullying complaints received by WorkSafe New Zealand between 2013 and 2017, WorkSafe took no action in almost half of them. Of the remaining cases, 42 were referred on to other organisations and only nine were investigated. No legal action was taken against employers for workplace bullying.
New Zealand has the second-worst rate of workplace bullying in the developed world, with one in five New Zealanders experiencing it. Employees should be briefed on relevant practices if workplace bullying occurs, while employers should strive to make these practices as robust as possible to mitigate any risk.
Employment law is constantly evolving and involves complex and sometimes ambiguous legislation. If you have any concerns about whether you or your organisation are acting in compliance with the law, please contact the Employment Team at Cavell Leitch for advice.