Introduction

The recent Netflix series Baby Reindeer has brought the issue of workplace stalking into mainstream conversation. However, stalking is not just an issue seen on TV. It is an increasing problem which can complicate workplace relationships and impose ethical and legal obligations upon employers to take action to protect the health and safety of employees.

Netflix shines a light on an insidious practice

Baby Reindeer focuses on the experiences of Donny, a struggling comedian who becomes the target of an obsessive stalker, Martha, after offering her a free drink at the bar where he works. Over the course of the show, Martha’s fixation on Donny escalates. She stalks him online, sends him thousands of emails, turns up to his workplace and home uninvited, and harasses (and in some instances) assaults his friends, girlfriend, and family.

The show raises some dark topics, but it has shone a light on the insidious practice of stalking, an issue arising with increased frequency in Australian workplaces.

What is stalking, and how common is it?

So, what exactly is stalking? The Australian Bureau of Statistics (ABS) in their Personal Security Survey defined it broadly to include a number of behaviours (such as loitering around the victim’s home or workplace, following the victim, and damaging their property) undertaken with the intention of causing fear and distress.

The extent of the problem is highlighted by the ABS reporting that 1 in 7 Australian adults (an estimated 2.7 million people) have experienced stalking since the age of 15 years. These statistics include 20% of women and 6.8% of men. Around 9.9% of the stalking perpetrated against women arose from work and professional relationships.

Common stalking behaviours reported in the Personal Security Survey included maintaining unwanted electronic contact (64.5%), following or watching the victim (39.8%), and relevantly in the employment context, loitering around the victim’s place of work (33.6%). In terms of impact, 34.3% of women and 33.6% of men surveyed stated that the stalking they had experienced had impacted their work life.

Criminal offences

In Victoria, section 21A of the Crimes Act 1958 (Vic) makes stalking into a criminal offence. This offence of stalking is serious with a maximum penalty of 10 years in prison. A person stalks another if they engage in a course of conduct with an intention of causing physical or mental harm to the victim, including self-harm, or of arousing apprehension or fear in the victim for his or her own safety.

Stalking behaviours include actions such as following the victim; contacting the victim by post, telephone, text message or e-mail; publishing on the internet statements or material about the victim; entering or loitering outside or near the victim's place of residence or of business; making threats to the victim; or keeping the victim or any other person under surveillance.

In the case of Medical Board of Australia v Khoo (Review and Regulation) [2021] VCAT 67 (27 January 2021) (Khoo) , Dr Khoo became infatuated with a colleague, Dr Z and over a number of months sent her many social media messages. He discovered Dr Z’s address without her knowledge by photographing a package sent to her at work, made a copy of her house keys, and later broke into her apartment (while she was not home) and took some of his clothes off, before being caught by Dr Z’s roommate. Dr Khoo was eventually charged with stalking under section 21A of the Crimes Act. His employer responded swiftly placing Dr Khoo on leave with pay after becoming aware of the charges. He plead guilty and received a fine of AU$2,500.

Stop bullying orders

The Fair Work Commission (FWC) has powers to make anti-bullying orders when a worker has been bullied at work and there is a risk that the worker will continue to be bullied. Bullying could include stalking-related behaviour that occurs with a work colleague or a customer. The case law in the anti-bullying jurisdiction is fairly well established now, with cases confirming bullying could extend to stalking-related behaviours based on findings in other cases in which bullying has included unreasonable behaviours such as intimidation, coercion, threats, shouting, terrorising, malicious pranks, physical abuse, verbal abuse, emotional abuse, harassment, conspiracy to harm, victim-blaming and discrimination.

Stop sexual harassment orders

Similar to anti-bullying orders, the FWC can deal with disputes about sexual harassment in connection with work under the Fair Work Act. In some cases, the workplace sexual harassment may be associated with stalking-related behaviours. The FWC can make a stop sexual harassment order if satisfied that a person has been sexually harassed and there is a risk they will continue to be sexually harassed in connection with their work. The orders can extend beyond co-workers and can apply to customers or other workplace participants.

Sexual harassment occurs if a person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or engages in other unwelcome conduct of a sexual nature in relation to the person harassed, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Personal safety intervention orders (PSIOs)

PSIOs are orders made by magistrates which protect persons from physical or mental harm caused by persons other than family members. In Baby Reindeer, if Donny had taken out a PSIO with a non-contact condition against Martha, any future attempts by her to intrude upon his workplace would have been criminal acts.

In the context of the workplace, PSIOs can be ordered where persons have been subject to ‘prohibited behaviour’ including being assaulted, harassed, threatened, or stalked. Unlike criminal offences, they only need to be proved on the balance of probabilities, which makes them easier to obtain for vulnerable applicants.

When made, PSIOs generally include conditions, such as that the respondent (alleged stalker) must not contact or follow the applicant (person being stalked). This raises potential issues for employers where both the respondent and applicant are employees.

Key takeaways

Stalking does not just occur on TV. Statistics show it is a serious and widespread problem which raises many workplace legal issues. Depending on the circumstances, employers will owe different obligations to different persons. Legal advice is recommended to ensure duties under various workplace and criminal laws are taken into account and that employee health and safety is protected.