Introduction
Accused: MAP Foundation Pty Ltd ABN / ACN: 092 721 205
Industry: Public Sector and Community Services  Accused Type: Company (ACN)
Date of Offence: 01/01/2006 - 20/09/2006 Date of Determination: 08/02/2010
Incident: Workplace bullying/harassment Judge / Magistrate: P Lauritsen
Incident Summary: MAP Foundation Pty Ltd owned and operated a coffee shop/eatery called Café Vamp, located in Glenferrie Road, Hawthorn (“the workplace”). Marc Luis Da Cruz is the sole director of MAP Foundation Pty Ltd, and was present at the workplace approximately 5 out of 7 days per week. Nicholas Smallwood was employed as the head waiter and acted as manager of the workplace when Da Cruz was not present. Rhys MacAlpine was employed as a waiter, and Gabriel Toomey was employed as a chef at the workplace. MAP Foundation Pty Ltd did not have any system of work in place to ensure employees were provided with information, instruction or training regarding occupational health and safety matters generally or bullying and what is appropriate behaviour in the workplace. Workplace bullying is defined as repeated, unreasonable behaviour directed toward an employee or group of employees, that creates a risk to health and safety. The definition of ‘health’ in the Occupational Health and Safety Act 2004 includes psychological health. During the course of employment at the workplace, an employee was subjected to a range of repeated direct and indirect physical and non-physical bullying behaviour by Smallwood, MacAlpine and to a lesser degree, Toomey. Examples of bullying behaviour by Smallwood and MacAlpine included: Direct verbal insults: Unwarranted personal criticism/taunts/name-calling The employee being singled out for teasing and treatment other employees did not experience Offensive and degrading sexual comments regarding the employee (alleged against Smallwood only) Offensive comments about the employee’s physique and appearance Taunts relating to the employee’s suicide attempt Direct physical bullying: Throwing food at employees Kicking and spitting on employees (alleged against Smallwood only) Restraining and pouring fish sauce on the employee or in her bag Slapping the employee’s sunburnt skin Placing Ratsak in the employee’s tip bag or handbag after a suicide attempt about which they were aware (alleged against Smallwood only) Damaging the employee’s clothes and possessions including a mobile telephone Indirect bullying: Gossiping Exclusion Failing to intervene to stop bullying. Examples of bullying behaviour by Toomey included: Direct verbal insults: Unwarranted personal criticism/taunts/name-calling The employee being singled out for teasing and treatment other employees did not experience Offensive and degrading sexual comments regarding the employee Offensive comments about the employee’s physique and appearance Jokes/taunts/comments relating to the employee’s suicide attempt Direct physical bullying: Throwing food or drinks on employees Indirect bullying: Gossiping Failing to intervene to stop bullying. Da Cruz was aware of some aspects of the bullying behaviour being directed towards the employee as he was present on some occasions and allowed the behaviour to continue, even condoning it on other occasions. The reasonably practicable measures available to Da Cruz to ensure the workplace was safe and without risks to employee’s health and safety included stopping the conduct set out above and implementing proper procedures to manage the issue of workplace bullying. The described acts and omissions by Smallwood, MacAlpine, Toomey and Da Cruz exposed employees at Café Vamp to the following risks to their health and safety: Psychological injury Post traumatic stress disorder Anxiety disorders Increased risk of self harm Increased risk of suicide Insomnia Psychosomatic conditions such as nausea and muscular pain Headaches Cognitive effects such as poor concentration, irritability and lack of motivation and initiative Stress disorders Depression Increased risk of risk taking behaviour such as binge drinking and drug abuse; and Guilt and anxiety.
Court Number: Y02114118 Jurisdiction: Magistrates Court

Charges
Act & Section [Maximum Penalty] Count(s)
OH&S Act 2004 - s 21(1) & (2)(a) Employer failed to provide & maintain so far as was practicable for employees a safe working environment - plant & systems of work [1800 penalty units individual 9000 penalty units body corporate] Indictable offence triable summarily 1
OH&S Act 2004 - s 21(1) & (2)(e) Employer failed to provide & maintain so far as was practicable for employees a safe working environment - information instruction training & supervision [1800 penalty units individual 9000 penalty units body corporate] Indictable offence triable summarily 1
Plea: Guilty Fine: $220,000.00
Result: Conviction
Fine (Convicted and fined $110,000 on each charge. Costs awarded to the VWA in the sum of $3,000.)