Watch out: employers can now be liable for sexual harassment claims outside the workplace. Here are some ways to avoid claims. By PETER VITALE from VECCI.
By Peter Vitale
A recent case has sent a clear message to employers: the connection with a workplace no longer ends when your employees walk out the door every night.
The recent award of nearly $500,000 in compensation against the Commonwealth of Australia and three of its employees highlights more than ever the need for employers to be vigilant about having and enforcing policies against sex discrimination and sexual harassment. Employers also need to ensure that all employees receive adequate training about their rights and responsibilities.
The Federal Magistrates’ Court awarded the compensation to Ms L, a former employee of the Department of Defence employed at a navy base in Cairns. The key events, as found by the Court, which led to the applicant making a claim, make for disturbing reading:
- Ms L’s workplace had a number of prominently displayed images of nudity and explicit sex acts placed by various employees around their workstations and on computer screens.
- Ms L had been subjected to unwelcome sexual advances by a fellow employee, Mr S. Further Mr S had written sexually suggestive notes to Ms L and exposed his genitalia to her while they were on a training course.
- Ms L was invited to a social dinner organised by workmates of Ms L and Mr S. The invitation to Ms L was carefully planned between Mr S and the other workmates. Mr L was highly intoxicated and was later raped by Mr S at his home.
- After the rape, Mr S continued to threaten Ms L with harm if she didn’t remain silent about the matter, and engaged in further acts and made further comments which were found to constitute sexual harassment.
- Ms L’s work performance deteriorated and her superiors, including Mr H and Mr D, were found to have engaged in bullying and humiliating behaviour, which included verbal abuse, formal counselling about her work performance and setting tasks to be completed within unlikely timeframes. The Court found this conduct to be victimisation, as Messrs H and D were both aware of the complaint made by Ms L against Mr S.
From an employers’ perspective, the critical findings in the case were that the Commonwealth as the employer of all of the relevant actors, had failed to take reasonable steps to prevent the conduct of Messrs S, H and D.
Under the Federal Sex Discrimination Act, employers are liable for the unlawful acts of employees if those acts were found to have been committed “in connection with” the offender’s employment. In this case, this included the sexual assault of Ms L which occurred following a social arrangement of which the employer had no prior knowledge and nor did it authorise or endorse.
The factual links that resulted in the Commonwealth being liable were twofold. The sexual assault by Mr S was, in the words of the Federal Magistrate, the “extension or culmination of his [Mr S] pattern of behaviour that had started and continued to develop in the workplace he shared with [Ms L].” As a result, the Federal Magistrate found that “the nexus with the workplace was not broken”.
Aside from preventing the open display of pornography in the workplace, the Department of Defence failed to enforce its own comprehensive anti-discrimination policies, failed to prevent the sexual harassment by Mr S leading up to the rape. Further the department failed to provide Ms L with training that would have identified to her that she could have made a complaint about the behaviour of Mr S early in the piece, which might have avoided subsequent events.
The Federal Magistrate also highlighted other cases decided in Australia, New Zealand and England, where the employer was found vicariously liable for conduct occurring in the setting of workmates socialising outside the workplace and indeed outside a work context.
Undoubtedly the case is an extreme and unpleasant one. However, the lessons for employers are clear: the connection with a workplace doesn’t end when your employees walk out the door every night, unless you proactively stamp out unacceptable behaviour.
- Make sure you have a clear policy prohibiting sexual harassment and behaviour such as the display of pornography.
- Educate employees about your policies regularly, including their rights to complain about unwelcome behaviour. Make sure the training is frequent enough to cover employees who have commenced with the previous 6-12 months.
- Educate employees about how to conduct themselves appropriately in circumstances where a complaint has been made involving employees currently in the workplace.
- Engage managers in special training to help them understand how to treat a complainant fairly but sympathetically and what kind of conduct might be viewed as victimisation.
- Don’t let your workplace get out of control. The courts are clearly signalling that they will not give any tolerance to employers merely because the behaviour is “part of the culture” or “no-one has taken offence before”.
- Don’t hesitate to discipline employees who breach the rules – zero tolerance is the best chance of defending a claim for vicarious liability.
Workplace behaviour that may once have had a blind eye turned to it is not acceptable in 2007. There is a clear view that what starts in the workplace doesn’t necessarily end there; and employers can be liable.
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