By Michael Selinger

Last week, investigative journalist Nina Funnell published in the Sydney Morning Herald an explosive report called ‘The Red Zone Report’, which examined decades of alleged sexual harassment and hazing within some of the University of Sydney’s residential colleges.

The red zone is a term used by some health specialists to refer to the annual spike in sexual and physical assaults that they see every orientation week. The report raises very significant issues regarding the duty of care owed to students and the steps that the residential colleges must take to best protect those within their care.

The report also has brought to the public’s attention again the confronting practice of hazing. Hazing is conduct in which a group of persons is subjected to humiliating and, in some cases, physically and/or mentally harmful activities as part of an initiation or rite of passage process.

In reality, these practices are little more than unlawful assaults in which the victim cannot properly be said to have consented to the activities.

And these initiation practices are widespread in other industries as well. The Department of Defence has been in the media on a number of occasions regarding the initiation practices that cadets are often subjected to both while on duty or in a college, such as the Australian Defence Force Academy.

Increase in penalties

Some cases of hazing have resulted in the safety regulators bringing criminal charges against the perpetrators. The trend over the past 20 years has been to steadily increase the penalties imposed to reflect the community expectations.

In 1999, a 19-year-old apprentice employee of a workshop business, Gearmatics, suffered physical and verbal abuse inflicted by senior employees who approached the apprentice from behind and thrust work tools (a screwdriver and an extension bar) into the area of his anus through his clothing.

The magistrate at that time described the behaviour as stupid and said it was the type of conduct the community wished to actively discourage. Although the prosecution had argued strenuously for a conviction, the Court ultimately decided to impose a 12-month good behaviour bond on the two employees who perpetrated the assaults.

Five years later in May 2004, a carpentry business in NSW was prosecuted and fined $24,000 as a result of the ‘initiation’ of a 16-year-old apprentice by fellow workers that lasted approximately 30 minutes. The apprentice had been wrapped in cling wrap and threatened with physical injury. He also had sawdust and glue forced into his mouth.

The employer was charged with failing to ensure the health, safety and welfare of the apprentice because it did nothing to prevent the initiation. Notably, there was no policy prohibiting workplace violence and therefore no process for preventing the incidents. Also, no disciplinary action was taken against the employees who conducted the initiation.

Two directors of the employer were also prosecuted, convicted and fined $1,000 each.

Move ahead to 2016 in the Geelong Magistrate’s Court, a small carpentry business was convicted and fined $12,500 for bullying and harassing an apprentice in an ongoing series of initiations and pranks.

One apprentice, who began working for the business owned by Mr Wayne Dennertin 2013 as a 16-year-old, and suffered verbal, physical and psychological bullying and harassment over a two-year period.

The Court heard that during that period, Mr Dennert not only encouraged employees to participate in bullying behaviour against the teenager, but actively participated. WorkSafe submitted evidence to the Court that the physical incidents included:

• a live mouse being put down the back of his shirt by an employee;
• being drenched with water by an employee;
• being spat on by an employee;
• having ‘Liquid Nails’ squirted in his hair by an employee;
• Mr Dennert taking the apprentice’s mobile phone and posting an inappropriate sexual comment on his female friend’s profile page;
• Mr Dennert taking the apprentice’s mobile phone and making him believe Mr Dennert had posted a comment on another female friend’s profile;
• Mr Dennert ripping his work shorts;
• Mr Dennert holding a rag doused in methylated spirits over his mouth;
• Mr Dennert holding hot drill saw bits and baton screws to his bare skin;
• Mr Dennert smearing plaster across his face and into his eye and ear;
• Mr Dennert slapping him on his leg with a piece of timber;
• Mr Dennert scraping sandpaper across his face; and
• Mr Dennert grabbing him from behind and pinning his arms while another employee painted a stripe across his face.

The apprentice, who gave evidence at the sentencing hearing, informed the Court of the significant psychological abuse and harm he suffered as a result of these experiences, and their ongoing impact.

Duty of care

The duty of care for an employer in these cases is clear. Steps need to be put in place to ensure that the risk posed by hazing and initiation processes are eliminated. Those steps will include banning or prohibiting such behaviour and implementing appropriate supervision and monitoring to detect any such unlawful practices.

In the case of other organisations, such as residential colleges, the duty will also extend to ensure that residents are not exposed to risks to their health and safety from other residents. This will apply as equally to hazing and initiation rites as it would apply to the prevention of any other type of assault.