About vicarious liability
Vicarious liability is the responsibility an employer or principal has for the actions of their workers or agents while they are on the job.
If these actions are found to be unlawful under the Queensland Anti-Discrimination Act 1991 , both the person complained about and their employer or principal may be held responsible. You need to show the steps you've taken to prevent the behaviour are reasonable if you want to avoid vicarious liability.
- A worker sexually harasses another by repeatedly making remarks about her breasts in front of co-workers. He also has her head on the body of a naked woman as a screen saver.
- You own a restaurant, and one of your waiters refuses to serve a woman who is breastfeeding her baby, and has told her to leave the restaurant.
A complaint can be lodged against both the worker and the employer, or against the agent and their principal.
Defence to vicarious liability
You can defend this liability, by showing you took 'reasonable steps' to prevent your workers or agents from treating others unfairly or badly. These 'reasonable steps' aren't listed in the Act, because what's reasonable for a large business may not be reasonable for a small company.
'Reasonable steps' include having clear policies about fair treatment in the workplace, providing information and training for all staff, especially managers and supervisors, and having a fair process in place for dealing with complaints.
Defending vicarious liability examples
An employer always makes sure that:
- new staff are given training on appropriate behaviour in the workplace;
- supervisors, managers and staff are trained regularly in discrimination law;
- there is a clear workplace policy on appropriate behaviour which is reviewed and updated annually;
- there is a process to deal with any complaints quickly, privately and seriously;
- posters and brochures available from the Anti-Discrimination Commission are displayed in the workplace;
- staff are encouraged to contribute to a healthy workplace culture.
Each case will depend on its own merits, but as a general guide, you need to do everything you can reasonably do to prevent inappropriate behaviour in the workplace.
To prevent complaints arising, use the resources on this website including:
- Employers' toolkit;
- sample policy on discrimination and sexual harassment;
- information on training provided by the Commission throughout Queensland;
- case outcomes;
- decisions of the former Anti-Discrimination Tribunal Queensland ; and
- decisions of the Queensland Civil and Administrative Tribunal .
While taking steps to prevent discrimination or harassment in the workplace might take some effort and time, there are also many benefits. These can include:
- reduced absenteeism;
- increased productivity;
- reduced staff turnover;
- becoming an employer of choice so you can attract the best applicants;
- less time spent in dealing with complaints;
- improved morale and a healthy workplace culture.
Contact your nearest Commission office for more information.