Cooper v Western Area Local Health Network 
The NSW Administrative Decision Tribunal decided that employer,
Western Area Local Health Service (WALHS) was not vicariously
liable for the actions and conduct of one of its male workers who
sexually harassed a female colleague.
The claim involved female co-worker (Ms Cooper) being handed a
note after a training day and before dinner by a male co-worker (Mr
Locke). The note contained 'extremely sexual explicit material
– with no images.' It was unclear who the author of
the note was and there was no clear indication as to whether it was
originally intended for Ms Cooper.
Prior to the incident Mr Locke and Ms Cooper had worked together
for a period of about five years and were to some extent
'friends' – they had attend social gatherings
Throughout the hearing, Ms Cooper said that she believed the
note was intended for her and written by Mr Locke. However, the
tribunal accepted the evidence of Mr Locke and found that the note
was written by another person and taken from his laptop without his
Mr Locke gave conflicting evidence at the hearing and this was
one of a number of difficulties the tribunal found with evidence.
The other difficulties included:
Lack of reasonable explanation as to why Mr Locke gave Ms
Cooper such a 'inflammatory document' to her in a public
No credible explanation why Mr Locke gave Ms Cooper the
As a result, the tribunal accepted that Mr Locke was not the
author of the note, however, they were 'unable to come to any
reasonable explanation as to why, in fact, the note was given to Ms
The tribunal noted that it 'wasn't to his credit' to
say that 'Ms Cooper was the author of her own misfortune in
picking [up the note] of her own volition to take home to
read.' Accordingly, the tribunal was satisfied the conduct fell
within the scope of s22B of the Anti-Discrimination Act
1977 (the section governing harassment of employees).
Once a complaint is substantiated, the tribunal has the power to
award damages. The limit to the award is $100,000.
The tribunal awarded $10,000 damages payable by Mr Locke. The
factors that the tribunal noted influence awards of damages and the
amount awarded include:
Severity of the breach of the Act
Whether or not it was a one-off incident
Context of incident (at work, outside of work friendly
relationships between harasser and complainant)
Significance of ongoing effects of conduct
It was also noted that damages awarded in these types of cases
should be compensatory and not punitive (i.e. 'damages must
relate to issues arising out of the incident and not seek to punish
Why did employer escape vicarious liability?
In order for the Tribunal to be satisfied that WALHS was liable
under s53 of the Anti-Discrimination Act 1977 (the section
governing liability for principals and employers) they would need
to be satisfied that:
WALHS did not authorise Mr Locke to engage in the offending
WALHS took as reasonable steps to prevent Mr Locke from
engaging in the offending conduct.
The tribunal found that s53 was not satisfied because the WALHS
had taken the following reasonable steps:
At each re-employment or promotion of Mr Locke – he
was required to sign code of conduct
Code of Conduct in place was explicit and specifically dealt
with harassment and sexual harassment, and that it was not
WALHS had delivered to its employers a seminar which dealt with
sexual harassment and harassment generally.
This case demonstrates that employers can put measures into
place to avoid being found vicariously liable in situations where
sexual harassment has occurred. Those measures are known as
'reasonable steps.' Reasonable steps can include:
Having a Code of Conduct or policies that deal sufficiently
with sexual harassment and its consequences
Educating employees on sexual harassment.
We are able to assist you with putting into place the
'reasonable steps' required by the legislation to help you
avoid vicarious liability in your workplace.
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).