Most Read Contributor in Australia, September 2016
Under the federal Sex Discrimination Act, an employer is
"vicariously" liable for the acts of sexual harassment
done by an employee in connection with their employment unless the
employer took all reasonable steps to prevent that conduct.
In Richardson v Oracle Corporation Australia Pty
Limited ( FCA 102 (20 February 2013)) the Federal Court
had to determine whether a global technology consulting practice
was vicariously liable for sexual harassment committed by one of
The Court ruled that the following matters were in favour of the
employer's argument that they had taken all
New starters received a copy of a document entitled "Code
of Ethics and Business Conduct" (Code). Their employment
contracts imposed the requirement that they adhere to the Code in
contracts of employment.
The Code included the following statement:
"Harassment Oracle's policy is to
provide a work environment free from harassment. Although
"harassment" most frequently refers to sexual harassment,
workplace harassment may also include harassment based upon a
person's race, religion, national origin, gender, sexual
orientation, age, physical disability or any other inappropriate or
illegal basis. Oracle prohibits harassment in any form, whether
physical, verbal, or non-verbal.
You are encouraged to report instances of harassment to your
manager or, as appropriate, to your Human Resources Representative.
Your report will be kept confidential to the greatest extent
possible, and no complainant or witness will suffer retaliation
because of a report made in good faith."
Every two years employees were required to complete online
sexual harassment training. This training was a global package
which applied to all of the employer's employees
The employer had effective investigative policies in place,
which were implemented promptly when the victim complained.
There was no evident culture of sexual harassment in the
However the Court ultimately ruled that the employer had not
taken all reasonable steps because the on-line training package did
not identify the legislation in Australia that makes sexual
harassment unlawful and did not explain that the employer might
also be vicariously liable. Staff needed to know that legal action
could be taken against them for sexual harassment and that they
could also be exposing the company to liability. Statements to this
effect should have supplemented the statements that sexual
harassment is against company policy.
Lesson for employers
You should check your sexual harassment policy and make sure
that it identifies the legislation in Australia that makes sexual
harassment unlawful and explains that the employer might also be
vicariously liable for sexual harassment. A suggested clause is as
"Sexual harassment and victimisation is unlawful under
the Sex Discrimination Act 1984 (Cth) as well as
anti-discrimination legislation operating in every State and
Territory. Unless the company has taken all reasonable steps to
prevent an employee from committing acts of sexual harassment or
victimisation in connection with his or her employment, the company
is vicariously liable for that conduct."
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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