One of the frustrations employers experience in relation to
unlawful discrimination involves the issue of vicarious liability
for the unauthorised acts of employees. Discrimination legislation
generally makes the employer liable for employees' acts unless
the employer can prove they had taken all steps reasonably possible
to avoid or prevent the discriminatory actions taking place.
Rarely have arguments by employers that they have indeed taken
all reasonable steps been graced with success. The reasons for this
are clear. As with taking all reasonably practical action to avoid
an OH&S risk, it is fairly easy to suggest other steps that
could have been taken – which may have prevented the incident
from occurring – but were not.
However, in a group of recent cases, employers indeed have been
found to have done everything reasonably possible. Briefly
summarised, the thrust of these decisions is that an employer may
well be able to avoid liability if they:
have adequate policies and procedures in place, which have been
the subject of training, so that the alleged offender should have
been in no doubt of the employer's disapproval of
take prompt action upon a complaint being made.
By example, consider these cases:
A male employee handed a female employee a folded note at a
work meeting. It contained graphic sexual material. She complained.
The employer acted promptly to investigate the complaint and
discipline the offender. The employer had a policy, but it also did
much more: employees had to recommit to the code of conduct, and
attend refresher training on a regular basis. While the policy
itself would not have been sufficient, the additional steps meant
that the employer could not have done anything else to avoid what
occurred. The offender had to pay $10,000, however, the employer
was not liable.
A male employee publicly humiliated a male colleague by
simulating sex with him. When the victim complained, the employer
re-located the offender and, after due process, sacked him. The
victim sued both offender and employer. The offender was ordered to
pay $8,000 but the employer was found not liable. The employer had
a policy, had provided handbooks to employees and had provided
training. That, combined with prompt action, effectively meant that
there was not much else it could have done.
Note that in neither case had the employer been aware of the
misconduct. If you become aware of misconduct and do nothing, it
will appear to be tolerance or condonation of the behaviour and the
employer will be liable.
The lessons? Have good policies in place – do training and
refresh it periodically – act on reported misconduct as soon
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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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).