Vicarious Liability – employers be aware of duty of care

Employers have a duty of care to ensure that they take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness this includes taking reasonable steps to eliminate and/or respond to workplace bullying, harassment and sexual harassment failure to do that can result in an an action in negligence and a Vicarious Liability claim.

Organisations must be aware that they may found to be vicariously liable for the bullying behaviours of one employee toward another employee.

Business owners, employers and managers must ensure that they do all that they can to ensure that the duty of care is not breached as it can have serious consequences for employees and expensive consequences for employers.

The case of Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 illustrates a breach of duty of care in a workplace bullying matter.

The Queensland Court of Appeal found that an aged care facility had breached its non-delegable duty by failing to take steps to minimise the risk of a former employee developing a psychiatric illness due to managerial pressure.

A former employee of the nursing home claimed that she developed depression and anxiety as a result of her excessive workload and the conduct of her manager. She claimed that, from 2009 when the particular manager joined the facility, she was subject to offensive, intimidating and humiliating behaviour causing her to become withdrawn, preoccupied, worried and noticeably depressed within the workplace.

The former employee claimed damages for loss of earnings as a result of her inability to work due to her psychiatric illness.

Being overworked, of itself, would not have been sufficient to establish breach. However, the manager’s constant belittling, yelling, aggression and general disregard for the former employee, coupled with the excessive workload, was sufficient to amount to breach.

There was evidence to suggest that the manager (and therefore the facility) should have foreseen the former employee’s particular vulnerability and her risk of developing a psychiatric disorder. Awarded over $430,000.00 in damages as a result of Vicarious Liability

Lessons for employers:

1.   Ensure that you have policies and training in regard to employee behavioural expectations, we can help –

2.   Have a trusted misconduct reporting process in place.

3.   Ensure that your managers are aware of their duty of care to employees and understand the difference between management and bullying.

4.   Investigate complaints of this nature thoroughly and in a timely manner.

5.   If in doubt call an expert

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

Vicarious Liability - employers beware

The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

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