It is critical to think about how bullying should be legally conceptualised and addressed. Bullying can result in legal breaches and remedies under a broad spectrum of laws, including but not limited to discrimination, harassment, occupational health and safety law and criminal law.
The law occasionally holds both individuals and organisations liable which fail to meet their appropriate duty of care, including teachers, employers and schools, where they are in a position to prevent bullying but fail to do so.
At the present point in time, there is no single, uniform comprehensive statutory legal regime covering bullying in Australia.
Employer Groups and Associations are generally in favour of bullying being defined in anti-bullying Codes, as conduct which can arise only from repeated incidents or a pattern of conduct, expressing alarm that bullying could arise from one single incident.
Ged Kearney, President of the ACTU disagrees, claiming that bullying and harassment, discrete but overlapping legal concepts, should be treated in the same as any other workplace hazard or risk.
Kearney doesn’t think the Draft Codes relating to workplace bullying (Preventing And Responding To Workplace Bullying and Model Code of Practice on Bullying) achieve this, if bullying ends up being confined to conduct which can occur only on a repetitive basis.
As Kearney points out, being targeted once can be just as bad as repetitive behaviour. Arguably it could be worse, depending of course on the circumstances of the offending behaviour. The literature on bullying tells us that there are many kinds of behaviour which could constitute bullying, and more importantly which have resulted in serious traumatic physical and/or mental health problems.
A single incident of abuse, particularly where it occurs during initiation rituals and ceremonies can endanger life, sometimes resulting in fatalities.
Kearney has a valid point, particularly when we reflect on some of the tragic instances of hazing, pranks, jokes and initiation ceremonies which have occurred within certain institutional cultures, be it the military, education, prisons, on and off the sports field, and even on the factory production line.
It has been eleven years since a young 16 year old timber joinery worker called Dwayne Doyle was viciously bullied at the hands of five of his co-workers. Doyle, an asthmatic, was involved in an an extremely disturbing case of bullying which occurred during an initiation at his workplace, making national headlines.
The company which employed him emphasised their important role in the community as employers of young people, pointing out that they had a policy of trying to assist young people who were experiencing difficulties.
The Company’s Directors sought praise and commendation for their commitment to building and supporting their local community. However, after learning of what happened to a starry-eyed Dwayne Doyle back in 2001, one could be forgiven for wondering whether a company whose senior management behaved so recklessly and inappropriately, could credibly make this kind of argument, let alone begin to comprehend the responsibilities that are associated with the employment of young people. The company in question, at the time the Doyle incident occurred had an official policy of employing for the most part industrially inexperienced and particularly vulnerable youth.
One would expect such a company to be acutely conscience of the gravity of those important responsibilities, given the fact that the young people it employed were, to use the words of one of it’s Directors, “troubled teenagers”.
As Brian Coleman, a Director of the company that employed Doyle testified, 16 year old Doyle was employed at the request of a company employee, in this case Doyle’s mother, after discussions revealed that he had left school prior to finishing any final exams.
Doyle’s mother was hopeful that the Company could employ her son in an attempt to assist him establish some direction in his life. Little did she know what was about to happen to her son and the shocking behaviour he was about to be exposed to in his first experience in the workforce as a vulnerable young person, not only because of his age, but as a teenager in need of support and guidance.
As it turned out, the presence of his mother at the workplace where Dwayne suffered egregious harm at the hands of his fellow workers, may have ended up saving his life.
Shortly after commencing work as an apprentice, Doyle’s five co-workers grabbed him unexpectedly, used a manual plastic wrapping machine to wrap his body tightly in plastic clingwrap from neck to feet, stuffed his mouth with sawdust and glue and whirled his body around on a trolley over a period of 30 minutes.
Doyle coughed and choked as he found himself unable to breathe, whilst his colleagues covered him with sawdust, before squirting glue and water into his mouth. His body was anchored firmly to the trolley with more plastic wrap.
When Doyle pleaded with his co-workers to free him, one of his co-workers placed a Stanley knife at the end of a table near Doyle and said “if you can reach it you can cut yourself free”.
The trolley was continually pushed from side to side and spun around. Doyle’s shoes and bag were removed and filled with sawdust. Sawdust was thrown over Mr Doyle, and shoved down his trousers and shirt, whilst another employee squirted the wood glue into Mr Doyle’s shoes, over his body and into his mouth.
Fortunately Doyle’s mother found out about the incident and was able to give her son his ventolin inhaler. Dwayne Doyle may not otherwise be alive today, although we can never know what long term effects an incident like this could have on any person, let alone a youth of such tender age.
Mr Doyle somehow managed to drag himself to the work Christmas party on the 21 December 2001, a couple of hours later, and valiantly attempted to return to work after the Christmas break on 11 January 2002.
However, after suffering psychological and respiratory problems occasioned by the disturbing incident, which went completely unaddressed by management, Doyle ceased work after the Christmas break on 17 January 2002.
Doyle didn’t give notice to his employer that he was ceasing work on 17 January 2002, and on 22 January 2002, the Company notified Mr Doyle by letter that, by his absence, he had effectively abandoned his employment.
Brian Coleman, a Company Director and Factory Foreman, was informed about the incident by one of the factory labourers, who told him that an “initiation” had taken place. Not only was he informed that the incident had taken place, but it was found on the evidence presented, that this pre-meditated violence should have been reasonably forseeable.
What did Brian Coleman do? Absolutely nothing, either before or after the incident. No investigation was mounted by either Coleman or anyone within the company at senior management level.
Everyone merrily attended the christmas party a couple of hours after Doyle’s nightmarish ordeal. When proferring an explanation as to why he didn’t take immediate remedial action and/or render support and assistance to Doyle, Brian Coleman gave evidence to the effect that he didn’t want to spoil the atmosphere of the Christmas party that day, a claim that seems incomprehensible given the gravity of what had transpired.
Brian Coleman chose to do nothing, the christmas celebration proceeded as if nothing had happened, and management left an employee, already known to have been vulnerable prior to employing him, to suffer the consequences of what had happened to him at their workplace.
Doyle found himself isolated, completely alone and alienated, whilst employees went on holidays, before returning to work nearly three weeks later. Unsurprisingly, Doyle didn’t return to work on 17 January. What did the Company do? They decided to dismiss him.
An Inspector visited the factory on 12 February 2002, at which point the Company informed WorkCover it had initiated an internal investigation of the incident. The investigation was apparently conducted by Coleman’s sister, however the Company claimed it was unable to determine who was responsible for the incident.
All employees were subsequently reprimanded at a group meeting and told that threatening and harassing behaviour would not be tolerated, however no disciplinary action was taken by the Company against a single employee.
The case was first brought before the NSW Chief Industrial Magistrate, who fined the company $24,000 and found two Directors personally liable for the incident, fining them $1,000 each under the Occupational Health and Safety Act 2000 (Nsw) on the basis that bullying constituted an unsafe work system.
In Inspector Maddaford v Coleman (NSW) Pty Ltd & Ors  NSWIRComm 217, the Full Bench of the Commission, found that one Director of the Company would have reasonably foreseen that the initiation was about to take place, whilst another Director/Factory Foreman/Supervisor in attendance on the factory floor on the day the shocking incident took place, did absolutely nothing to deter employees from carrying out their intentions.
The Maddaford case illustrates that employers can be held liable where the risk of bullying is foreseeable and it is totally unacceptable not to react to bullying. The case highlights that Employers must be proactive in taking steps to prevent bullying in order to ensure a safe and healthy working environment.
The abuse suffered by Doyle went completely unacknowledged, to the point where he felt he had no alternative but to leave his employment. Doyle testified to the fact that the bullying exacerbated his existing health problems.
The Directors appealed the Magistrates’ decision, as did WorkCover NSW, however the Full Bench of the New South Wales Industrial Relations Commission affirmed the decision, holding that the company had breached its duty under s8 of the Occupational Health and Safety Act 2000 (Nsw) in failing to ensure a healthy and safe workplace.
The two directors and factory foreman were also found to be personally liable under s26 of the Act, even though they were not directly involved in the incident.
The Magistrate had found that Coleman had breached its s8 duty when 16 year old Doyle was subjected to the initiation, a word the Magistrate used interchangeably with bullying within his judgement.
Doyle testified as to how he had been threatened with violence, spun on a trolley, covered in sawdust and glue, and repeatedly had sawdust forced into his mouth in between bouts of having a fire hose squirted into his mouth. He described the effect this had had in increasing his respiratory difficulties and damaging his mental health.
In deciding the cross-appeals by the Directors and by NSW Workcover, the Commission’s Full Bench indicated that substantial penalties were needed to force Directors to give workplace bullying appropriate attention, remarking that an employer and its directors have a duty to prevent employees from “having fun at the expense of another person” and courts are unsympathetic to claims that bullying involves “harmless pranks or workplace high-jinks“.
The Commission found, on the evidence presented, that there was a known culture of workplace pranks and initiation rites which had occurred at the workplace. WorkCover had earlier prosecuted six employees involved in some capacity in the brutal incident, however before the Industrial Relations Commission all managed to escape with a good behaviour bond except for one fellow worker who was fined a paltry $500.
The case shows how easy it is for bystanders to be perpetrators in cases of workplace bullying and how imperative it is that colleagues, supervisors and Directors allunderstand that such behaviour is unacceptable.
It is important that employers and employees make it clear that bullying is unacceptable and pro-actively report bullying, extending support and assistance to victims of bullying. Anti-bullying policies should characterise bystanders as accessories, particularly where they actively support bullying incidents, whilst the law should impose serious sanctions for this type of behaviour.
The case serves as a reminder of how enmeshed workplace culture is with bullying, and how misguided it is for Employer groups to advance the argument that one can separate out workplace culture and management styles from bullying within the current debate on how to define bullying within the draft Codes.
It also graphically highlights how dismissive management can be towards employee victims and how convenient it is for management to turn a blind eye to victims and wait until they resign, rather than address problems when they occur.
As the Chief Magistrate said in the lower court decision: “What occurred on this day is often described as an initiation. It is a polite term for bullying … It is a culture that needs to be stamped out. Bullying has no place in the workplace.”
As the Full Bench of the Industrial Relations Commission remarked, Coleman was physically restrained and subjected to a violent ordeal. The behaviour in question certainly constituted bullying and an unsafe system of work, but also the crimes of assault and false imprisonement, which if they occurred in any other environment, would have likely result in the imposition of serious penalties. Why should it be any different where such crimes occur within a workplace environment?
As the NSW Industrial Commission held “There was present a potential risk of serious injury to Dwayne Doyle from the events on this day such as suffocation. What occurred was a sustained assault for approximately half an hour upon Doyle from his fellow employees. What started out as a simple episode of bullying got out of control leading to a serious physical threat to Doyle’s health and safety. As conceded by the defendants, viewed objectively this is a serious matter.”
In considering whether the anti-bullying codes should include behaviour which can occur in a single incident we can’t afford to forget Dwayne Doyle and other victims who have suffered a similar fate.
We must pause to consider whether the penalties imposed on Doyle’s Employer reflected the seriousness of the offences, particularly given the gravity of the potential risk to health and safety.
The Doyle case serves as a reminder in the context of the current debate as to whether a single instance of abusive behaviour can constitute bullying that two judicial bodies had no hesitation in characterising behaviour which occurred in a single instance, albeit a sustained one, as “bullying”.