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30 Mar 12
Workplace training avoids vicarious liability for employer in sexual harassment claim

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McCullough Robertson’s Tim Longwill a Workplace Relations and Safety Partner discusses a case which is a timely reminder to employers of the importance of providing frequent, consistent and documented training for employees, ensuring that they are aware of conduct which could constitute harassment. 

Cooper v Western Area Local Health Network [2012] NSWADT 39

The New South Wales Administrative Decisions Tribunal has found, in a claim for compensation for sexual harassment made against an employee of Western NSW Local Health Network (LHN), that the policies and training implemented by LHN  were adequate to for LHN to avoid being found to be vicariously liable for the behaviour under section 53 of the Anti-Discrimination Act 1977 (NSW) (the Act) and that they were therefore not required to pay any of the compensation.

Section 53 of that Act states that employers are able to avoid being found to be vicariously liable for the harassing behaviours of their employees if they take ‘all reasonable steps to prevent the ... employee from contravening the Act’. There are similar provisions in all other discrimination legislation throughout Australia.

This case is a timely reminder to employers of the importance of providing frequent, consistent and documented training for employees, ensuring that they are aware of conduct which could constitute harassment.  In doing so, employers are more likely to be able to defend a claim for vicarious liability for harassment or bullying occurring in the workplace.

In the case, the Second Respondent, a colleague of the Applicant, had handed a note (apparently written by a third party) containing highly explicit material of a sexual nature to the applicant at a staff training day.  The second respondent had folded the note and asked the Applicant to read it when she returned to her hotel room. 

Disturbed at the note’s content, the Applicant claimed, in addition to sexual harassment against the Second Respondent, that LHN was vicariously liable in ‘failing to take all reasonable steps to prevent the agent or employee from contravening the Act’.

The Applicant argued that the employer should have been aware of the likelihood of one of the LHN’s employees to engage in such conduct based on previous breaches of email etiquette.  However there was little evidence to support the claim that the employer should or was put on notice of this.

It was also suggested by the Applicant that the training ensuring that the Code of Conduct concerning sexual harassment was followed was inadequate to prevent employees from contravening the Act.  Both the Applicant and Second Respondent gave evidence that they merely signed an acknowledgment of receipt of the Code of Conduct and returned it without having read the document.

The employer was able to submit detailed evidence of the Second Respondent’s employment history confirming that prior to the alleged conduct in October 2010 he was provided with the relevant Code of Conduct on:

  • 1 August 2002
  • 16 September 2002 (with affirmed receipt and agreement to be bound on 30 September 2002)
  • 26 March 2007 (with affirmed receipt and agreement to be bound on 15 June 2007)
  • 1 July 2008 (affirmed by the second applicant), and
  • 23 July 2009 (with affirmed receipt and agreement to be bound on 23 July 2009).

The second applicant was also made to undertake mandatory training sessions over the course of his employment including:

'(a) harassment and discrimination in the workplace on 10 April 2008
(b) bullying and harassment in the workplace on 26 May 2008
(c) the Code of Conduct on 14 October 2008, and
(d) bullying, harassment and discrimination in the workplace on 26 March 2009.’

While it is considered that simply providing employees with the Code of Conduct will generally not be sufficient for an employer to avoid vicarious liability for an employees’ action, the Applicant failed to illustrate that ‘active steps had not been taken to ensure that employees were aware of their responsibilities’.

The tribunal held that the policies were in fact presented and implemented to the attention of LHN employees in a ‘meaningful way’ as required by Dee v Commissioner of Police and Anor [2003] NSWADT 217.  Noted also, was the fact that LHN ensured that employees were aware of all policies affecting their conduct and the penalties involved in contraventions of such policies.

It should be noted that the conduct of the Second Respondent was a ‘one-off’ incident which was found to be generally out of character. 

It was held that the second respondent had contravened the Code of Conduct and the Act accordingly and was made to pay $10,000 in compensation to the Applicant.

Focus covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. Focus is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.

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