Work health and safety legislation aims to provide protections for workers and other persons by eliminating or minimising risks to health and safety. In addition to the primary duty of care imposed on businesses, the work health and safety legislation also imposes a duty on workers.
The duty owed by workers is separate to that owed by the business and so, workers can be individually prosecuted for failing to comply with their duty – as recently occurred in a case in NSW involving a tradesman who bullied apprentices in the workplace.
The tradesman was convicted by the NSW District Court for breaching his duty as a worker under the Work Health and Safety Act 2011 (NSW) (WHS Act)
The bullying behaviour, which took place over extended period of time, included verbal abuse, swearing, belittling and threats directed at the apprentices, which caused them to experience distress and anxiety.
The tradesman pleaded guilty and was convicted of failing to comply with his duty to take reasonable care that his acts or omissions did not adversely affect the health and safety of other persons.
The tradesman was fined $6,000 plus costs and was also ordered by the Court to attend training in bullying and harassment, anger management and emotional intelligence.
This successful prosecution by SafeWork NSW is a reminder to businesses and workers that bullying is a risk to work health and safety and both businesses and workers have a role to play in preventing workplace bullying, particularly towards younger workers and apprentices who may be more vulnerable to bullying behaviour.
The Court’s orders in this matter, that the tradesman undergo training, should also serve as a timely reminder for employers that in addition to adopting anti-bullying policies, employers should regularly undertake anti-bullying training to ensure that workers are aware of their obligations and duties under the legislation, as well as the potential consequences of breaching those obligations and duties.
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