The recent exposure of a toxic workplace culture in Australia’s parliament, has brought attention to the importance of effective employee behaviour policies and training. The alarming experiences of female political staffers and the wide reach of the March4Justice rallies, point to a strong societal rejection of organisations that permit or condone inappropriate conduct in the workplace.
This widespread community reaction is well-founded. When examining workplace sexual harassment in the last five years, the Australian Human Rights Commission 2018 survey on sexual harassment found that almost two in five women (39 per cent) and just over one in four men (26 per cent) have experienced sexual harassment. In the last 12 months alone, 23 per cent of women in the workforce have experienced some form of workplace sexual harassment compared with 16 per cent of men in the workforce. The Australian Human Rights Commission also released the ‘Respect@Work: A National Inquiry into Sexual Harassment in Australian Workplaces’.
On 8 April 2021, the Federal Government released their Roadmap for Respect, in response to the Respect@Work report, which sets out a blueprint for taking proactive steps to stamp out sexual harassment, an approach all employers should consider. In addition to other legislative changes, the Roadmap sets outs the Federal Government’s intention to extend the Sex Discrimination Act 1984 to include judges and Members of Parliament. All employers, including the Federal Government, need to reinforce the expectations for fair, respectful and reasonable treatment between co-workers. This requires regular policy training as well as having up-to-date workplace behavioural policies. An organisation that fails to do this can expect more workers’ compensation claims, bullying claims, dismissal disputes, and complaints of sexual harassment and discrimination.
For more information on how to prepare for the upcoming legislative changes regarding sexual harassment, please see our previous article here.
Risks and vicarious liability
An employer can be held vicariously liable for the actions of an employee which are committed in the course of employment. An employer can be found responsible for a victim’s illness/injury or for the actions of the employee that performed the inappropriate behaviour.
However, a defence against vicarious liability can be established if an employer can demonstrate that it has taken 'reasonable steps' to ensure its employee’s do not engage in unlawful conduct. Importantly, regular and ongoing training on workplace polices is an effective method to prevent discrimination and harassment and is a likely indication of ‘reasonable steps’.
In 2009, a plywood grader reported to her employer that a colleague approached her from behind and touched her buttocks. After the incident, the grader asserted she was subjected to victimisation from collegues when she was called a "slut" and a "dobbing dog" after making her complaint.
In this judgement, the full Federal Court overturned the previous decision and held the employer vicariously liable for the sexual harassment carried out by the perpetrator.
The full court said they could not blame the employer for the timing of its 'working with respect' training, which the perpetrator attended four days before sexually harassing the complainant.
However, it was concluded that the employer "failed to establish that it took all reasonable steps" to prevent the colleague from engaging in the harassment. The reason being that there was limited evidence that substantial action (beyond the training) was taken to convey the seriousness of sexual harassment.
This decision highlights not only the importance of workplace behaviour training, but also a continual and sustained effort by employers to condemn sexual harassment.
In 2015, a paralegal was subjected to an extended period of sexual harassment including a barrage of inappropriate emails, forced hugs and threats to her employment, at the hands of her supervising solicitor. There was also an incident which took place on a work trip whereby the solicitor slept on the floor next to her in his underwear. The solicitor was constant in his push for a romantic relationship despite the paralegal’s clear and consistent complaints.
The Federal Circuit Court ordered in her favour directing the solicitor to pay $170,000 in damages. One judge said the solicitor’s actions were the "very conduct that the law of sexual harassment seeks to eliminate".
Though in this case there was no claim of vicarious liability made against the firm, these instances of sexual harassment are examples of behaviour which may be prevented by adequate education and clear workplace policies. Here, the court observed the solicitor’s lack of understanding regarding the seriousness of his behaviour and condemned his outdated beliefs. Through comprehensive education and training, incidents of this kind may be less likely to occur.
Benefits of workplace behaviour training
An organisation’s vicarious liability for unlawful behaviour of its workers can be minimised if the organisation can demonstrate effective workplace behaviour training. This will also help create a positive workplace culture thereby reducing absenteeism and workers compensation claims and improving productivity.
This kind of training should aim to:
If you would like the benefit of Holding Redlich’s experience in order to develop and/or deliver induction or refresher Workplace Behaviour Training to employees, please contact our Workplace Relations & Safety team.
Authors: Charles Power, Julia Wyatt & Olivia Lawrence
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.