A recent case in the NT Anti-Discrimination Tribunal again highlights that employers can be held accountable for unlawful discrimination or harassment in the workplace unless they take adequate steps to discourage such behaviour.
The Tribunal found that a technical support and administration officer employed under an Indigenous wage subsidy program suffered discrimination at work when the employer’s principal consultant made derogatory comments about Aboriginal people. The Tribunal ordered the consultant to pay $6,000 in damages for that unlawful discrimination.
However, the Tribunal also ordered the employer to pay $3,000 in damages because it was accountable for the consultant’s actions. Under Northern Territory anti-discrimination laws, an employer is vicariously liable for the actions of its employees and agents unless the employer can demonstrate that it “took all reasonable steps” to prevent the discrimination.
The Tribunal concluded that in this case the employer had not taken reasonable steps to prevent the discrimination as its policies were inadequate. The Tribunal was also not satisfied that the policies were being actively promoted or that appropriate training was being provided about how employees should comply with the policies. As the Tribunal noted, “the mere existence of policies is insufficient”.
This case follows a similar approach taken by the Federal Court under Commonwealth discrimination laws in Richardson v Oracle Corporation Australia Pty Limited. In Oracle, the Court held that the employer’s anti-discrimination materials, which included a written policy and involved staff completing an online training module, were insufficient – and lacked a number of essential features - to avoid the employer being held vicariously liable for an employee’s sexual harassment. This resulted in the Court deciding that the employer had not taken “all reasonable steps” to prevent its employees from engaging in sexual harassment.
Lessons for employers
The Commonwealth, States and Territories each have similar provisions regarding an employer’s vicarious liability for the behaviour of its employees engaging in unlawful discrimination and harassment.
The recent Northern Territory decision provides another reminder that employers cannot avoid responsibility for discrimination in the workplace by simply adopting a generic policy, placing it on the employer’s intranet and then forgetting about it.
To provide a safe workplace that is free from discrimination, it is imperative that employers have an anti-discrimination policy that addresses each of the specific issues required by relevant anti-discrimination laws, and which reflect recent court decisions. Particular care must also be taken to ensure that a policy suits the employer’s specific business, rather than an employer simply adopting a policy “off the rack”.
Employers must also be able to demonstrate that staff are fully aware of the policy, and that staff have received appropriate training about what is unlawful discrimination and about how to comply with the policy.