New Psychosocial Hazard and Discrimination Laws Making Directors Personally Liable for Workplace Bullying
Since Brodie’s work-related death in 2006, the Australian legal framework has grappled with the best way to prevent workplace bullying from causing death or serious injury. Directors and officers have been convicted and sentenced to imprisonment for breaches of work health and safety duties that cause serious physical injury or death. This has resulted in the acceptance of creating an organizational safety culture through a chain of responsibility. Recent changes in the law are now setting the scene for directors' personal liability for serious psychological injury or death. As with any new laws, the first major case will define how serious the courts are about holding accountable the people making decisions and profiting from turning a blind eye to safety risks. If you don’t want to be famous for all the wrong reasons, you need to eliminate the risk of psychological injury by using positive behavior to create a psychological safety culture.
The Work Health and Safety new Psychosocial Hazard Code of Practice and Regulations creates a duty to eliminate personal conflict escalation, discrimination and poor job design posing a risk of psychological injury. These are the unreasonable behaviours that cause workplace bullying when repeated. By eliminating this behaviour before it is repeated, you can stop workplace bullying before it happens.
The local Safe Work regulators can now enforce psychosocial risk elimination and prosecute directors and business owners for breaches causing psychological injury just like a physical injury. The chain of responsibility that has applied to physical injury like serious transport and forklift incidents now applies to psychological injuries caused by psychosocial hazards. As with those serious incidents causing death, an incident like Brodie’s case today would result in directors and officers of a business being personally liable.
The Human Rights Commission now has the power under the Sex Discrimination Act to enforce the new positive duty to eliminate sexual discrimination including sexual harassment. They create an additional oversight to ensure organisations are taking steps to prevent sex discrimination and sexual harassment. This is in addition to the local Safe Work regulators who can conduct compliance inspections for discrimination as a psychosocial hazard.
The Fair Work Commission can still make orders to prevent bullying, discrimination and forcing employees to resign with compensation for unfair dismissal and adverse action affecting employment rights. Those orders can also prevent unequal pay and sexual harassment. When employees can make a claim, it can cost the organisation legal expenses and downtime to deal with the issue.
New Work Health and Safety Industrial Manslaughter offences are coming soon with 20-year penalties and multi-million-dollar fines. Directors and business owners can be held personally liable, and organisations may not be able to survive the imposition of huge fines. Directors' professional indemnity insurance does not cover WHS penalties and fines.
The chain of responsibility in a psychological safety culture starts with the management strategic plan, flowing through authentic leadership and strategic human resource management, supporting early conflict resolution, emotional intelligence and positive behaviour. Empathyse is an off-the-shelf complete online solution with education, training, policy and employment agreements to create a psychological safety culture to stop workplace bullying before it happens.
Kevin Gilmore-Burrell LLB MBA has more than 20 years of experience as a business lawyer. He is currently researching workplace bullying to develop Empathyse ® web-based off-the-shelf solutions for any sized organization with a view to completing a PhD at the University of Newcastle.
https://www.empathyse.com.au