@ccbaxter said:
If anyone’s interested I was told today by a lawyer (not an expert ‘strata lawyer’) that I could perhaps mount a civil case using as a basis the NSW Workcover rules about work place bullying. That is to say, the owner is on the Executive Committee and the EC (or the OC) and maybe the Strata Manager maybe vulnerable. To be continued.
I will go out on a limb here and say that the assumption is tenuous at best.
Even if you could draw a clear line between your bully and her position on the EC as either a worker or a PCBU under the WHS laws, you would need to determine, and hence define, that the OC itself is ‘work’ or an ’employer’ because the ultimate WHS liability rests with an organisation. This idea of a ‘workplace’ is central to the WHS act and bullying. An OC defines (primarily) a collective where people live. And, even if yours is a mixed use scheme: your interface with the OC is always around a question of where you live, and not where you work.
As for drawing your strata agent into all of this from the point of view of liability, again, you would need to determine (after having defined your OC as a workplace rather than a place where people live) that your strata agent was not in fact employed by the OC to carry out only the administrative functions, but rather implicitly or explicitly led the EC/OC to condone the bullying.
This of course won’t fly as the OC is the higher authority in this entire argument and WHS responsibility rests with them, so in effect, you will end up suing yourself and your neighbours and your increased levies will cover the cost of this action.
Lastly, the WHS act specifically excludes strata schemes from PCBU definitions, unless the scheme employs one or more people directly such as a concierge or caretaker. Even then, the PCBU extends only to workers themselves and the person employing them: so the caretaker could lodge a bullying claim against you and the OC, but you could not lodge a bullying claim against the caretaker or anyone else on the OC.
The term bullying is an over-used one: you are experiencing a neighbourly dispute – two people living in close quarters who simply don’t get along. Such disputes are just as common in free standing houses as they are in a strata scheme, so the avenues of redress are identical. Go get a restraining order, pursue civil action against her, call the police if she breaks the law and so on, but it is your responsibility and not the responsibility of your strata scheme or your strata agent to ensure that everyone co-exists happily.