Clifford Gouldson Lawyers

Harassment, bullying & discrimination: How can employers avoid liability from employees' inappropriate actions?

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21/06/2016

In the recent decision of Newchurch v Centreprise Resource Group Pty Ltd, Mr Graham Ride and Ms Sarah Ride[1], the employer, Centreprise Resource Group Pty Ltd (Centreprise), was found to be vicariously liable for the sexual harassment of one of its employees by a co-worker, as it had not taken all reasonable steps to prevent the conduct.
 
When determining if Centreprise had taken all reasonable steps to prevent the conduct from occurring, the Northern Territory Anti-Discrimination Commission (NTADC) relied on an earlier decision of the Federal Court of Australia, Richardson v Oracle Corporation Australia Pty Limited[2] (the Richardson Decision) when it considered the content of Centreprise’s policies and procedures.

Relevantly in the Richardson Decision, the policies and training package did not set out what types of discrimination were unlawful, the source of the relevant legal standard (such as the Anti-Discrimination Act 1991 (Qld)) and that the employer may be held to be vicariously liable for the actions of its employees if they engage in such conduct.
 
It was held by the Federal Court of Australia in the Richardson Decision that these omissions from the policy and training package meant that the employer had not taken reasonable steps.
 
In light of the Richardson Decision, the NTADC held that Centreprise failed to demonstrate that it had taken all reasonable steps, as it did not provide the NTADC with copies of any policies that may have included such provisions, demonstrate that it had effectively communicated to its employees the content of its policies or that it provided its employees with any training. 

The NTADC held that the mere existence of Centreprise’s policies was not sufficient.
 
So what do your policies say?
 
Getting the right wording in your policies is a simple step to assist you in satisfying a Court or Tribunal that you have taken all reasonable steps to prevent the conduct, in the event an employee was to bring a claim.
 
If you have any questions in relation to this alert, please do not hesitate to contact our Workplace Law team.

 


[1] [2016] NTADDComm 1 (5 January 2016).

[2] [2013] FCA 102.

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