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Vicarious liability under Australian law

The doctrine of vicarious liability effectively serves to render employers liable for the wrongful acts of their employees in so far as those acts are committed in the course or scope of their employment. Generally, if it can be said that the employment relationship created both the “opportunity” and the “occasion” for a wrongful act to take place, the employer will be held liable. This was recently discussed in the High Court in the matter of  Prince Alfred College Incorporated v ADC [2016] HCA 37 a matter involving sexual assault

Previous cases have also been decided by reference to the sufficiency of connection between the wrongdoing and the responsibilities of the employee and by the identification of material circumstances or “features” common to certain kinds of cases.

The courts’ focus has generally been to look at the extent to which the employment relationship enabled or facilitated the commission of the wrongdoing.

The “relevant approach”

Drawing from previous judgements, the High Court prescribed the adoption of what it described as “the relevant approach”. According to the relevant approach, the court must consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed in relation to the victim.

The HCA then went on to state that in determining whether the apparent performance of such a role may be said to give the occasion for the wrongful act, particular features may be taken into account. Clearly contemplating crimes of a sexual nature, it asserted that such features include authority, power, trust, control and the ability to achieve intimacy with the victim.

Applying the relevant approach to the case before it, the HCA stated the appropriate enquiry was whether the employees role as housemaster placed him in a position of power and intimacy in relation to the victim, such that his apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment.

Significance of the case

This case offers a crucial lesson to employers who might not otherwise realise that they may be held liable for the unlawful acts of their employees, even where they themselves are not at fault.

The HCA has affirmed that each case must be determined on its individual facts and merits. The consequence is that considerable uncertainty and expensive litigation is certain to ensue in cases of this kind.

Employers should ensure that the parameters of their employees’ roles are well defined to minimise the risk of liability arising for acts said to occur in the course of an employee’s duties.

The types of scenarios where employers may be particularly vulnerable to a claim of vicarious liability include schools (and especially boarding houses), hospitals, care facilities, disability clinics and many more (keeping in mind the fact that such claims are not limited to circumstances involving sexual assault or even criminal activity in general).

In order to try and minimise their risk, employers should check:

  1. that their policies and employment agreements, including codes of conduct, specifically prohibit sexual harassment; and
  2. that appropriate training is conducted
  3. Have a trust reported mechanism in place and investigate matter thoroughly when reported.
  4. Have a proactive investigation mechanism in place when matters or suspicions come to light.

AWPTI can provide you with training and investigation services to help protect you business

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

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

Details of the case – http://www.austlii.edu.au/au/cases/sa/SASCFC/2015/161.html

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 – http://awpti.com.au/backup/training/

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. http://awpti.com.au/backup/investigations/

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

www.awpti.com.au
http://awpti.com.au/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.

 

Beware of vicarious liability

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. Failing to do so could mean that employers may be vicarious liability  for the bullying behaviours of an employee toward another employee.

vicarious liability as a result of a breach of  the duty of care 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 Qld 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

 

Lessons for employers:

  1. Ensure that your managers are aware of their duty of care to employees and understand the difference between management and bullying.
  2. Don’t ignore complaints or reasonably foreseeable situations
  3. Investigate complaints of this nature thoroughly and in a timely manner.
  4. If in doubt call an expert

 

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.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitability qualified and experienced workplace investigator.