Liability
There are a number of different sorts of liability. An individual can be liable for their own harassing or discriminatory actions. Alternatively, the University can be liable if it is found to have not taken reasonable steps to prevent the discrimination and harassment from occurring. This is known as 'vicarious liability'.
The vicarious liability provisions of the legislation do not preclude individual persons from being held liable for their own discriminatory or harassing behaviour in the workplace or in connection with their employment. It may be that both the employer who fails to act appropriately and the individual who is the alleged harasser will be held jointly liable for the behaviour.
Vicarious liability for the conduct of employees
Section 106 of the Sex Discrimination Act, 1984 (Cth) makes employers vicariously liable for the unlawful conduct of their employees or agents (including contractors). This means that if an employee sexually harasses students or other staff, the employer can be held legally responsible and may be liable to pay damages.
The vicarious liability provisions also provide employers with a defence. Vicarious liability can be reduced or avoided altogether if the employer can show that 'all reasonable steps' were taken to prevent the occurrence of harassment or discrimination both within the usual work environment and at employer sponsored seminars, conferences, work functions, Christmas parties, business or field trips. This means that employers are required to implement precautionary measures to minimise the risk of unlawful behaviour. The minimum level of action required is to:
- issue and distribute a sexual harassment policy
- establish fair and effective sexual harassment grievance procedures
- treat all complaints seriously and investigating them promptly
- raise awareness of all employees about workplace discrimination and harassment and its prevention
- train those responsible for dealing with complaints or enquiries (including managers and supervisors)
- monitor the work place culture and environment