When claims of sexual harassment are made by employees, it
raises serious implications for the complainant's employer.
Both the harasser and the employer (by way of vicarious liability)
can be liable in sexual harassment claims.
What is vicarious liability?
Vicarious liability in general terms is the legal principle that
renders employer's liable for the actions of their
When does liability arise?
Employer's liability can arise when an employee commits
an unlawful act of sexual harassment in connection with the
employment. The phrase 'in connection with the
employment' is being defined broadly by the courts.
The effect of this is that employer's are being held liable
for incidents occurring outside the four walls of the workplace and
in the context of 'off-duty environments.'
In Leslie v Graham (2002) the Federal Court of
Australia handed down a decision that rendered the employer liable
for the acts of one of its employees who was taken to have sexually
harassed a co-worker in an 'off- duty environment.' The
conduct took place in an apartment shared between the harassing
employee and the complainant employee whilst they attended a
regional conference. The incident occurred after a social night out
held as part of a conference when the harasser returned to the
apartment drunk. Her Honour said that 'the harasser and
complainant were in a continuing relationship as employees at the
time of the incident'... there were sharing the
apartment 'in the course of their common
employment' (they were there because of a work-related
conference) it could therefore 'not... be suggested that their
common employment was unrelated or merely incidental, to the
In Lee v Smith (2007), the employer was found
vicariously liable for the sexual harassment of one of its
employee's in circumstances where:
The complainant was shown pornography in the workplace
The complainant was harassed during a training course by
another employee (Mr Smith) who engaged in conduct which included
note writing about having holes in his jeans which allowed him to
touch his private area and through which he subsequently exposed
ping of the complainant by Mr Smith at a private residence
after a social drinks gathering at a fellow employee's
The rape was held to be 'in connection with the
employment' on the basis that the rape was as a result of
the culmination of the earlier incidents of sexual harassment which
took place directly in the workplace. Federal Magistrate Connolly
said: '[the harassing conduct] was an extension or
continuation of a pattern of behaviour that had started and
continued to develop in the workplace [shared by the harasser and
complainant]. The [connection] with the workplace was not
Are there any defences?
Under the Sex Discrimination Act, employer's
are able to raise a defence so to avoid being caught by the law as
'vicariously liable'. This is known as the 'all
reasonable steps defence.
The cases provide some guidance to employer's with
respect to what steps should have been or need to be taken in order
for an employer to demonstrate that it took all reasonable steps to
prevent the (harassing) employee from doing or committing unlawful
Employer's need to do something active to prevent the
acts complained of including:
Providing new employees with a brief document pointing out the
nature of sexual harassment, the sanctions that attach to it and
the course to be followed by an employee who feels sexually
Informing employees that disciplinary action will be taken
against them if they engage in sexual harassment and advising new
staff that it is a condition of their employment that they do not
sexually harass a co-worker
The existence of an effective complaint handling process /
procedure to deal with complaints of harassment
Having in place a clear sexual harassment policy available in
writing which is communicated to all members of the workforce and
continual education on sexual harassment.
The above points are a guide only – there is no
exhaustive list of steps an employer could take to prevent being
vicariously liable. Further, the courts in addition, also take into
account factors such as the size of the organisation. Large
corporations are expected to do more than small corporations to
demonstrate they have acted reasonably.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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