Employer found vicariously liable for employee’s blatant sexual harassment of co-worker

It is unlawful for an employee to sexually harass another person in the workplace. In many cases, victims of sexual harassment will seek compensation from their employer, rather than the actual perpetrator, given that the employer has deeper pockets. In such circumstances, the employer will be found vicariously liable for the actions of its employees if it failed to take reasonable precautions to prevent the behaviour occurring in the workplace. As is demonstrated by a recent decision in Queensland, this can result in a substantial award of damages against the employer.

Case Study: STU v JKL & Ors [2017]

The Employee worked for an accommodation chain and was transferred to work at a different work location (the Complex). As part of her move, the Employer offered for the Employee to stay in a separate bedroom within the residence of another employee, a caretaker at the Complex, until she found her own residence. The Employee was subject to sexual harassment by the caretaker on her first night at the Complex, and subsequently suffered psychological trauma, claiming in her sexual harassment proceedings that she was unable to work for a period of 4 years.

While the Employer did not deny that the sexual harassment took place, it claimed that:

1. the location of the sexual harassment was in a ‘private residence’
2. the caretaker’s actions were not ‘in the course of employment’
3. there was nothing the Employer could have done to prevent the actions of the caretaker.

The Tribunal disagreed with the Employer and found that as the Employer had encouraged the Employee to take up the accommodation offer, and the accommodation was sufficiently connected with her employment.

Crucially, the Tribunal found that the Employer led no evidence of any reasonable precautions or steps it had taken and importantly stated –

“if the [Employer] 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 actions of its worker”

The Employer was ordered to pay the Employee more than $300,000 in compensation – which included damages, past economic loss, superannuation benefits, future economic loss, special damages and interest.

Lessons for Employers

Employers must be proactive by providing training to their employees and implementing appropriate policies on appropriate workplace behaviour. This promotes a positive workplace culture where employees feel safe, and will in turn minimise the risks of vicarious liability in the event an employee fails to comply with these policies.

HR Legal can assist employers with preparing and implementing policies and providing training on appropriate workplace behaviour, including harassment, discrimination and bullying.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.