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Workplace Bullying: The Impact of Brodie’s Law on Employers

Brodie Panlock was a 19 year old waitress who tragically ended her life after being subjected to ‘persistent and vicious’ workplace bullying at café Vamp in Hawthorn, Victoria.[1] A coronial inquest found that Brodie’s young age, low self-esteem, and inexperience combined to make her ‘emotionally vulnerable’, and it was this vulnerability that was callously exploited by four older colleagues. In February 2010 all men pleaded guilty and were fined under the Occupational Health and Safety Act 2004 (Vic).[2] Even though the criminal prosecution was the first of its kind in Australia, outside the court, Brodie’s family demanded the law be changed to include a custodial sentence.

Workplace bullying is so endemic in Victoria that a 2010 survey into the public sector alarmingly revealed that one in five public servants had experienced bullying at work.[3] Combine this figure with the disturbing outcome of Brodie’s case and one can begin to appreciate why the Victorian government has moved to introduce the desperately needed Crimes Amendment (Bullying) Bill 2011 (Vic). The Bill has been nicknamed ‘Brodie’s Law’, and according to Attorney-General Robert Clark it proposes to ‘send the strong signal to would-be offenders that the government will not tolerate bullying behaviour’.[4]

Scope of Brodie’s Law:

Instead of introducing a new crime against workplace bullying, Brodie’s Law expands the existing offence of stalking under s 21A of the Crimes Act 1958 (Vic)which carries a maximum jail term of 10 years. The problem with Brodie’s Law is that even though it affords protection from ‘employees’ engaging in bullying conduct, it appears that the amendments alone cannot hold ‘employers’ criminally accountable. The amendment to s 21(2)(g) states that stalking includes‘acting in any other way that could reasonably be expected to cause physical, mental, or self harm’. However, I believe that the use of the word ‘acting’ actually requires the employer to engage in a positive act rather than simply refraining from acting. In other words, Brodie’s Law punishes positive acts of bullying but does not punish employers who do not take action against the bullying conduct. Otherwise s 21(2)(g) would have read:

‘acting [or omitting to act] in any other way that could reasonably be expected to cause physical, mental, or self harm’. 

Whether this is a legislative oversight or not, it contradicts Magistrate Peter Lauristen’s sentence in Brodie’s case where His Honour reserved the second heaviest sanction of $30,000 for Brodie’s employer Marc Da Cruz.

Seeking Accountability Beyond Brodie’s Law:

If the Bill is passed without amendments, it appears prosecutors will have to look beyond the bounds of Brodie’s Law to establish criminal liability against employers. The law of derivative liability stipulates that a person who ‘aids’ a principal offender may himself or herself become a principal offender.[5] Prosecutors could rely on this provision to argue that when an employer fails to take action against bullying conduct, he or she in fact ‘aids’ the principal bully and must therefore be necessarily charged as a principal offender.

R v Russell (1933) VLR 59 consisted of an analogous circumstance whereby a defendant husband stood by and watched his wife drown their three children and then herself in a public pool after an argument. The defendant was convicted of three counts of manslaughter as a principal offender even though he did not drown the kids himself. In dismissing his appeal Cussen ACJ stated (at 66):

‘I am of the opinion (1) that if a person present at the commission of a crime in the opinion of the jury on sufficient evidence shows his assent to such a commission, he is guilty as a principal, and (2) that assent may in some cases be properly found by the jury to be shown by the absence of dissent, or in the absence of what may be called an effective dissent’.

Therefore, when an employer does not provide an ‘effective dissent’ to the bullying conduct, this Victorian case law highlights that he or she can indeed be criminally accountable for not taking action. Especially where the victims are owed a duty of care such as in parent/child or employer/employee relationships.

The problem with forcing prosecutors down the path of derivative liability is that a derivative criminal action cannot be instigated against an employer unless the prosecution is able to firstly prove the initial charge of stalking against the principal offender.[6] In other words, an employer cannot be charged with a crime unless the bully is firstly convicted of an offence. Thus justice will be denied to a victim in a situation where the principal bully is found innocent due to some legal technicality, as the employer will walk free of stalking liability too. This would certainly not be the case if Brodie’s Law was amended to include the words ‘acting or omitting to act’ in s 21(2)(g), as both parties could be tried independently as principal offenders.

Ali Besiroglu

 

[1] Steve Butcher, ‘Brodies Torment’, The Age, 11 December 2009,  <online> at 27 April 2011.
[2] ‘Men Who Tormented Suicide Waitress Brodie Panlock Fined’, AAP: <online> at 27 April 2001.
[3] ‘Trends in Bullying in the Victorian Public Sector: People Matter Survey 2004-2010’, Victoria State Service Authority (2011), <online> at 27 April 2011.
[4] Parliament of Victoria, Parliamentary Debates, Legislative Assembly, 6 April 2011, 1019 (Attorney General Robert Clark, Attorney General), <online> at 27 April 2011.
[5] Crimes Act 1958 (Vic), s 323.
[6] Jonathan Clough & Carmel Mulhern, ‘Criminal Law’ (2nd ed, 2004) 280.  See also R v See Lun and Welsh (1932) 32 SR (NSW) 363 at 365.