The recently passed "Brodie's Law" in Victoria has added a further level of complication in dealing with workplace bullying, according to an international law firm.
Brodie's Law covers stalking generally both in and outside the workplace, and the offence deals with serious types of threatening, abusive or offensive conduct towards a person, said Siobhan Flores-Walsh, special counsel in the occupational health, safety and security group for Norton Rose.
"Brodie's Law is a mainstream criminal law, which means that the police will need to lay charges for the offence in the first place," she said.
"Convicting a person for this offence requires the criminal standard of proof to be met."
Accordingly, Flores-Walsh said Brodie's Law may not be the most effective way to tackle inappropriate workplace behaviour, particularly as the behaviour would need to be quite extreme to come under the ambit of the Workplace bullying and the Victorian Crimes (Bullying) Amendment Act 2011.
"It may be that pursuing a civil remedy, requiring a lower standard of proof and not entailing a criminal penalty against the alleged perpetrator, would offer a more satisfactory result," she said.
Flores-Walsh also noted that the workplace behaviour covered by Brodie's Law has always been unlawful in the workplace, and the type of conduct that occurred in the Panlock case would have constituted a breach of employers' obligations under existing OHS laws across Australia.
"It is important to remember that in OHS and criminal stalking prosecutions, the victim is essentially just a witness in the prosecution," she said.
"There is really no direct compensation for the person who is bullied, harassed or discriminated against under these statutory laws."
Civil law actions for negligence or breach of contract, or actions that may result in an award of damages, compensation or undertakings by the employer - as in adverse action, workers' compensation or discrimination claims - may offer more satisfactory remedies for workplace bullying victims, Flores-Walsh added.
The next issue of OHS Professional magazine will feature a special feature on workplace bullying, Brodie's Law and implications for OHS professionals.