The recent exposure of a toxic workplace culture in Australia's Parliament has brought attention to the importance of effective employee behaviour policies and training. The alarming experiences of female political staffers and the wide reach of the March4Justice rallies point to a strong societal rejection of organisations that permit or condone inappropriate conduct in the workplace.
This widespread community reaction is well-founded. When examining workplace sexual harassment in the last five years, the Australian Human Rights Commission 2018 survey on sexual harassment found that almost two in five women (39 per cent) and just over one in four men (26 per cent) have experienced sexual harassment. In the last 12 months alone, 23 per cent of women in the workforce have experienced some form of workplace sexual harassment compared with 16 per cent of men in the workforce.
Managers need to reinforce the employer's expectations for fair, respectful and reasonable treatment between co-workers. This requires regular policy training as well as having up-to-date workplace behavioural policies. An organisation that fails to do this can expect more workers' compensation claims, bullying claims, dismissal disputes, and complaints of sexual harassment and discrimination.
Risks and vicarious liability
An employer can be held vicariously liable for an employee's actions committed during their employment. An employer can be found responsible for a victim's illness, injury, or for the actions of the employee that performed the inappropriate behaviour.
However, a defence against vicarious liability can be established if an employer can demonstrate that it has taken 'reasonable steps' to ensure its employee's do not engage in unlawful conduct. Importantly, regular and ongoing training on workplace policies is an effective method to prevent discrimination and harassment and is a likely indication of 'reasonable steps'.
Von Schoeler V Allen Taylor And Company Ltd (T/As Boral Timber) And Others (No 2) (2020) 376 ALR 110
In 2009, a plywood grader reported to her employer that a colleague approached her from behind and touched her buttocks. After the incident, the grader asserted she was subjected to victimisation from colleagues when she was called a "slut" and a "dobbing dog" after making her complaint.
In this judgement, the Full Federal Court overturned the previous decision and held the employer vicariously liable for the sexual harassment carried out by the perpetrator.
The Full Court said they could not blame the employer for the timing of its 'working with respect' training, which the perpetrator attended four days before sexually harassing the complainant.
However, it was concluded that the employer "failed to establish that it took all reasonable steps" to prevent the colleague from engaging in the harassment. The reason being that there was limited evidence that substantial action (beyond the training) was taken to convey the seriousness of sexual harassment.
This decision highlights not only the importance of workplace behaviour training, but also a continual and sustained effort by employers to condemn sexual harassment.
Hughes t/as Beesley and Hughes Lawyers v Hill  FCA 1234
In 2015, a paralegal was subjected to an extended period of sexual harassment including a barrage of inappropriate emails, forced hugs and threats to her employment at the hands of her supervising solicitor. There was also an incident that took place on a work trip whereby the solicitor slept on the floor next to her in his underwear. The solicitor was constant in his push for a romantic relationship despite the paralegal's clear and consistent complaints.
The Federal Circuit Court ordered in her favour directing the solicitor to pay $170,000 in damages. One judge said the solicitor's actions were the "very conduct that the law of sexual harassment seeks to eliminate".
Though in this case there was no claim of vicarious liability made against the firm, these instances of sexual harassment are examples of behaviour that may be prevented by adequate education and clear workplace policies. Here, the Court observed the solicitor's lack of understanding regarding the seriousness of his behaviour and condemned his outdated beliefs. Through comprehensive education and training, incidents of this kind may be less likely to occur.
Benefits of workplace behaviour training
An organisation's vicarious liability for unlawful behaviour of its workers can be minimised if the organisation can demonstrate effective workplace behaviour training. This will also help create a positive workplace culture thereby reducing absenteeism and workers compensation claims and improving productivity.
This kind of training should aim to:
- enhance general awareness of the behaviours that create potential legal liability, both for the perpetrators and their employer
- educate workers of the options available to them to do something about inappropriate behaviour
- reflect the specific working environment of the workplace
- align with any workplace policies and practices.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.