Questions and Answers

WHO’S RESPONSIBLE?

WILL YOU BE PAYING FOR YOUR WORKERS' BEHAVIOUR?

What is Vicarious Liability?

The Anti-Discrimination Act states that if any of a person’s workers or agents contravene the Act in the course of work or while acting as an agent, both the person and the worker or agent, as the case may be, are liable for the contravention, and a complaint can be lodged against both of them. There’s a defence if the employer or principal proves, on the balance of probabilities, that they took reasonable steps to prevent the worker or agent contravening the Act.

Q: A woman from the administrative area of my company has complained that another employee has subjected her to unwelcome sexual advances. My company designed a sexual harassment policy 12 months ago and we put it on the staff noticeboard. Would we be liable for the harassment?

A: Your company may still be liable. Recent Tribunal rulings in Queensland and interstate have clearly and unequivocally stated that the employer’s obligation is not only to introduce policies, but to positively and actively ensure they are implemented, for example, what, if any, training was given to managers and their employees about the meaning of the policy?

Q: All of our organisation’s training services are contracted out. We do not employ trainers and believe that because of this we would not be liable if a trainer discriminated against an employee. Is this so?

A: No. You may be liable if the trainer could be seen as representing your organisation or as acting on behalf of your organisation. Regardless of whether they are on contract or an employee, the trainer might be considered to be an agent of the organisation. The test as to whether a person could be considered as an "agent" under the Act is to ask how the relationship between the parties in question presents to independent third parties.

YOU CAN CONTACT THE COMMISSION’S ENQUIRY SERVICE FOR MORE INFORMATION

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