Sexual harassment & vicarious liability

 Cooper v. Western Area Local Health Network [2012] NSWADT 39

The decision by the NSW Administrative Tribunal regarding s.77 of the Anti-Discrimination Act 1977 (NSW) is of interest in their finding that the employer was not liable for the once off conduct of Mr Locke an employee who provided a colleague with sexually explicit material.

S. 53 provides a defence to employers if they take “all reasonable” steps to prevent such conduct.

In this instance:

60.

The affidavit of Mr Fahy set out Mr Locke’s employment history. He had been employed in 2002, and was provided with the relevant Code of Conduct on:-

a) 1 August 2002;

b) 16 September 2002 (of which Mr Locke affirmed receipt and agreed to be bound on 30 September 2002);

c) 26 March 2007 (of which Mr Locke affirmed receipt and agreed to be bound on 15 June 2007);

d) 1 July 2008 (affirmed by him on that date); and

e) 23 July 2009 (of which Mr Locke affirmed receipt and agreed to be bound) on 23 July 2009.

61

Mr Locke also undertook mandatory training during his employment with the LHN, including sessions on:-

a) harassment and discrimination in the workplace on 10 April 2008;

b) bullying and harassment in the workplace on 26 May 2008;

c) the Code of Conduct on 14 October 2008 (conducted by Donna Stanley); and

d) bullying, harassment and discrimination in the workplace on 26 March 2009.

The Tribunal found:

83

It is not enough for an employer merely to institute policies; the policies need to be implemented and brought to the attention of the employees in a meaningful way. By failing to do so the employer may be found to have authorised the conduct – see Dee v Commissioner of Police and Anor [2003] NSWADT 217. That is not the case here.

84

It seems to the Tribunal that the steps taken by the employer were sufficient, in the sense that all steps that could have been taken were in fact taken to fulfil the employer’s responsibility that its employees be aware of the various policies affecting their conduct at work and the necessity to abide by them, including penalties if they do not.

85

Accordingly, the first respondent, the Local Health Network, is not vicariously liable pursuant to s 53 of the Act for the actions of Mr Locke in sexually harassing Ms Cooper.

Brisbane Barrister – David Cormack

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