Industrial manslaughter offence introduced in New South Wales
On 20 June 2024, the New South Wales Parliament passed legislation to include a new criminal offence of industrial manslaughter under work health and safety legislation.
Read more...Differences in opinion, dysfunctional relationships and disagreements between employees may occur from time to time in the workplace. Generally, these instances of workplace conflict do not amount to bullying behaviour, which is defined as repeated, unreasonable behaviour causing a risk to health and safety.
However, if left unaddressed, instances of low-level conflict can exacerbate and lead to bullying behaviour and psychosocial hazards in the workplace.
The Queensland Industrial Relations Commission (the Commission) was recently required to consider an application to stop bullying involving workplace conflict in the decision of Mcatee v Holt [2023] QIRC 125.
The employee was employed as a School Cleaner for the State of Queensland (Department of Education) (the Employer) at the Virginia State School. The employee made several allegations of bullying behaviour by a colleague who was also a cleaner at the school.
The allegations included that the colleague:
- yelled and swore at her in or around June 2021 for leaving a jacket on the floor which escalated into a screaming match between the pair, resulting in the colleague telling the employee to, “get out of here, you don’t have f*cking business here” (the June 2021 Incident);
- told the employee that she was “f*cking rude”, “f*cking selfish” and did not have “a f*cking brain”;
- took an unwarranted photo of the employee while she was at work;
- vandalised the employee’s car with a pen;
- spread “misinformation and rumours” about the employee;
- left windows open in the employee’s area of responsibility so that she would get in trouble and completing tasks that the employee was assigned to do; and
- telling another employee that she did not want the employee to become permanent because she was a “f*cking bitch”.
On the other hand, the colleague gave evidence before the Commission that in or around September 2021, she asked the employee a “simple question” about her workload and finishing time when the employee “lost it” and punched her in the chest three times. This resulted in the colleague reporting the incident to the Police and the Employer conducting an internal management enquiry.
In or around November 2021, the Employer moved the colleague to another school on an external placement to “help calm the situation”. However, by January 2023, the colleague re-commenced work in her substantive position at the Virginia State School.
The Employer also made several other attempts to address the conflict between the parties, including issuing them both a letter setting out its behavioural expectations following the June 2021 Incident. The Employer also offered the employee a change in working hours and to place her cleaning equipment elsewhere so that she could avoid interacting with the colleague – however, the employee did not avail herself to either of these opportunities.
The Commission ultimately found that “despite the existence of a clearly dysfunctional working relationship”, the colleague did not engage in repeated, unreasonable behaviour against the employee and therefore, the employee had not been bullied at work.
The Commission considered only the June 2021 Incident to be indicative of unreasonable behaviour by the colleague, stating that it was an excessive reaction to a minor incident. However, the Commission noted that this behaviour was in part due to the contributory conduct of the employee and “symptomatic of the intense personality conflict between the parties".
As for the other allegations, the Commission found that they contained "considerable hearsay and speculation” and that the employee did not present as a reliable witness, noting that she held a “vengeful rather than fearful view” of the colleague. It stated that she appeared to be less concerned about her future working relationship with the colleague and was instead focused on retribution.
The Commission accepted the colleague’s evidence that the employee pushed her in the chest in September 2021, which further demonstrated a level of animosity between the parties.
The Commission found that while the allegations did not amount to bullying behaviour, it was evidence of a working environment in which commentary and gossip contributed to “a cyclone of drama in the workplace".
The Commission went on to state:
“Any risk to the psychological health and safety of the [employee] is likely a result of the [employee]’s perception of being bullied and the ongoing tension between the parties rather than any objectively unreasonable conduct by the [colleague].”
Finally, the Commission recognised that the Employer had attempted to resolve the parties’ difficult relationship, showing “admirable patience” in managing the workplace conflict. It suggested that the Employer implement training with respect to appropriate workplace communication and resilience to further help the parties.
Satisfied that the colleague did not engage in bullying behaviour towards the employee, the Commission dismissed the application.
Lessons for employers
Employers have a duty to ensure, so far as reasonably practicable, the health and safety of its workers in the workplace. While workplace conflict is not generally considered bullying behaviour, if it is not dealt with promptly and fairly, it may escalate to instances of repeated, unreasonable bullying behaviour and a psychosocial hazard.
Employers should turn their minds to implementing refresher training on bullying and harassment to ensure that employees are aware of the employer’s expectations as to appropriate interactions and behaviours in the workplace.
Information provided in this blog is not legal advice and should not be relied upon as such. Workplace Law does not accept liability for any loss or damage arising from reliance on the content of this blog, or from links on this website to any external website. Where applicable, liability is limited by a scheme approved under Professional Standards Legislation.
