LEGAL AND COMPLIANCE

If your employee misbehaves, you could be the one facing legal action

Tracey Mottershead

26 September 2016

Bullying and harassment are hot topics at the moment, particularly in the workplace.  Yet many employers are unaware that they may be found responsible if such behaviour is carried out by their employees.  Vicarious liability is the responsibility employers have for their employees whilst ‘on the job’.  This responsibility is not just restricted to the workplace.  It extends to any work related event, such as seminars, business trips or work events.

Under State and Federal legislations, employers are vicariously liable for any bullying or harassment conducted by their employees.   This liability can be removed if the employer can prove that they have taken “all reasonable steps” to prevent such actions.

The Administrative Decisions Tribunal (ADT), found an employer vicariously liable for the sexual harassment of an employee at a KFC outlet.  A fellow employee had shown the complainant pornographic images and made suggestive comments.  The employer had provided training to prevent harassment but it was found to be insufficient to prevent the acts complained of.  It was also found that management had failed to respond appropriately.

Another employer avoided liability after the ADT rejected a claim of vicarious liability for sexual harassment.  In this case an employee was sexually harassed by a supervisor.  The employer, in responding to and investigating the complaint immediately, was praised for their actions by the ADT, who stated that “it was difficult to envisage what more an employer could have done”.

 

To avoid liability the Australia Human Rights Commission suggests a number of actions, including:

 

  • Prepare and promote written policy prohibiting bullying and harassment
  • Educate staff to prevent, identify and respond to acts of bullying or harassment
  • Establish an effective complaints process
  • Treat all complaints seriously and investigate promptly
  • Ensure appropriate action is taken to resolve complaints
  • Provide harassed or bullied employees with the support they require
  • Provide employees who have bullied or harassed others with appropriate guidance and training to ensure it does not happen again
  • Monitor workplace conduct and culture on an ongoing basis

Employers should not just assume that their employees are aware of what constitutes bullying or harassment.  Nor should they assume that they know what to do if it occurs.  What is seen as friendly banter or a harmless joke to some, is not by others.  As such employers have a responsibility to educate all staff on appropriate workplace behaviours and to ensure a safe work environment.  For their own sake as well as that of their employees.

 

Disclaimer:  Blogs posted by MMO HR Solutions are for information purposes only and do not constitute professional advice.  The reading/use of any blog posts does not form a consultant-client relationship and such reading/use should not be used as a substitute for professional advice.