Employment Law

Training avoids vicarious liability

This is interesting: in a recent Australian case, the employer was able to avoid liability for the sexual harassment of one of its employee on the grounds that it had adequately provided and implemented sufficient training.

Under the NSW Anti-Discrimination Act, employers are vicariously liable for the discriminatory behaviour of their employees, unless they have taken all reasonable steps to prevent the employee from doing so. In the case, the employer was able to evidence that the employee had acknowledged receiving the respective Code of Conduct on a number of occasions, as well as having received specific training on the Code of Conduct and the respective harassment policy. That, the Tribunal found, were sufficient active steps in order to discharge the obligation under the Act.

Although New Zealand does not have any specific employment harassment legislation, employers are subject to very similar standards. An employee who is harassed by a co-worker can lodge a disadvantages claim against their employer. In order to determine whether such a disadvantage claim is justified, a court/ tribunal would then need to establish whether the employers actions were what a reasonable and fair employer could have done in all the circumstances. Relevant factors taken into account would be whether the employer has a policy in place and how employees were made aware of it, Also, whether harassment incidents had occurred before and how they were dealt with. The culture of the workplace is also important. Harassment among workers on an oil rig comes in a different form than harassment in a multi-cultural mental health organisation.

At the end of the day, it is all about being prepared and putting the policies in place before the event – remember, if it can happen at your workplace, it probably will.