The Queensland Civil and Administrative Tribunal recently considered allegations of sexual harassment and the extent of an employer’s liability for the unlawful conduct of its employee. This case will be of interest to employers because it shows the practical steps employers can take to ensure they are able to successfully defend a claim based on vicarious liability.
Mr Menere was employed by PoolriteEquipment Pty Ltd as a causal assembly line worker. He alleged that MrSingh, a fellow assembly line worker, sexually harassed him by:
- repeatedly asking to go to the bathroom with him;
- making lewd gestures towards him with assembly line equipment including piping and steel tools, as well as with handwash soap; and
- placing his groin on various parts of Mr Menere’s body and thrusting against him.
Mr Menere also alleged that Poolrite’s policy towards and methods of dealing with sexual harassment were inadequate and that Poolrite failed to prevent Mr Singh’s conduct.
The Anti-Discrimination Act 1991 (QLD) (Act) provides that an employer is liable for the unlawful conduct of its employees unless it can show that it took all reasonable steps to prevent the employee from breaching the Act. Similar exceptions apply under anti-discrimination legislation applicable in other States. In reaching its decision in this case, the Tribunal was required to determine whether Mr Singh had sexually harassed Mr Menere and if so, whether Poolrite was vicariously liable for Mr Singh’s conduct.
The Tribunal accepted that Mr Singh’s conduct amounted to sexual harassment, but was satisfied that Poolrite had taken all reasonable steps to prevent Mr Singh’s unlawful conduct and that Poolrite should not be held vicariously liable for Mr Singh’s conduct. The Tribunal noted that Poolrite had:
- provided employees, including Mr Singh, with a detailed employee handbook as part of the induction process which addressed and expressly forbade sexual harassment and workplace bullying;
- required employees to undertake training in relation to sexual harassment, both prior to and following the incidents of harassment; and
- dealt with Mr Menere’s complaints in an effective and expeditious manner which ultimately led to the termination of Mr Singh’s employment
The Tribunal was satisfied that Poolrite “did more than merely have a policy in place. It took sufficient positive steps to ensure awareness and attempted compliance with appropriate workplace practices. [Poolrite] had an appropriate policy in place and took steps to prevent [Mr Singh] and others from contravening the Act through, for instance, undertaking the training courses”. Ultimately, Mr Singh was ordered to pay Mr Menere $8,000 in damages.
This case demonstrates the practical steps that employers should take to avoid being found vicariously liable for the unlawful conduct of its employees under anti-discrimination legislation. Those steps include:
- Maintaining comprehensive and current policies dealing with anti-discrimination and bullying;
- Providing employees and managers with regular education and training in relation to their obligations under anti-discrimination law;
- Consistently and appropriately enforcing policies; and
- Responding to complaints promptly and appropriately