$300,000 damages in sexual harassment case is timely reminder to employers of vicarious liability

Workplace Directions

STU v JKL (Qld) Pty Ltd and Ors [2017] QCAT 505

In a recent decision, Queensland’s Civil and Administrative Tribunal found that an employee had sexually assaulted and harassed another employee in breach of Queensland’s anti-discrimination legislation.

Background

It was alleged that the applicant suffered a psychiatric condition, including Post Traumatic Stress Disorder, due to the offending conduct that occurred in December 2010. When the applicant commenced employment, she agreed to initially share accommodation to assist her transfer to the employer’s place of business. On the morning of 1 December 2010, the offending employee entered the applicant’s bedroom while naked, and she awoke to find him standing over her as he touched her upper thigh and groin and attempted to remove her underwear.

Decision

The employer was found to be vicariously liable for the conduct of the employee on the basis that the conduct occurred in the course of the employee’s work. The victim was awarded $313,316 in damages. This included an award of $70,000 in general damages, $162,594.42 for past economic loss, and $25,000 for future economic loss.

Why this decision is relevant to your business

Even in a climate where discrimination and sexual harassment complaints are on the rise, many employers have not implemented policies and procedures that may have the effect of avoiding liability for the unlawful acts of employees. Although this case was determined in Queensland, vicarious liability provisions exist in anti-discrimination legislation in other jurisdictions.

Prohibition against sexual harassment and discrimination is generally not limited according to where such conduct occurs. An employer may be held vicariously liable for the conduct of its employees outside the principal place of work, or normal business hours. The employer in this case had taken no steps at all to prevent the employee from engaging in the conduct, which was noted by the QCAT member in these comments:

If the Third Respondent had taken steps to inform its workers of their legal obligations and to provide the education and training necessary to ensure compliance, then it may have avoided responsibility for the unlawful acts of its worker.

We recommend that employers:

  1. Develop and implement a discrimination and harassment policy. If a policy exists, review the policy and ensure it is consistent with current anti-discrimination legislation.
  2. Arrange appropriate workplace training – to be attended by all staff – that addresses discrimination and harassment and assists employees to understand their rights and obligations.
  3. Review current complaints and investigation procedures to ensure they are sufficient to address complaints of discrimination or harassment, and that complaints are swiftly and sensitively managed.
  4. Regularly review and monitor policies and procedures to ensure they are understood by employees, and that they are followed should any discrimination or harassment occur.

Authored by Sheridan Landwehr, Special Counsel and Nick Duggal, Partner, Melbourne.


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