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​​Hotel vicariously liable for sexual harassment

Legal Case: Sexual Harassment

Published: 15 March 2017​

Sexual harassment may occur even if the employees are not actually working, and employers can still be vicariously liable for the harassment. In a recent case in Queensland, a young woman was left alone with a predatory co-worker and unable to call for help.

The facts

Two hotel workers, a 21-year-old woman and the 70-year-old night caretaker, shared an apartment in the hotel provided by their employer. This arrangement was suggested by the company CEO with the knowledge of the HR department.

The caretaker crept naked into the woman’s room at 5am one night and began touching her body and trying to remove her underwear. She told him to stop and to leave her room. He did so, but returned later and said: ‘This can be our little secret’. 

The woman was badly affected by the incident and developed post-traumatic stress disorder, depression, alcohol abuse, anxiety, sleep disturbances, and an inability to drive or work for three years after the attack. She took action against her employer and a number of individual employees.  

The law​

Employers are ‘vicariously liable’ or responsible for the wrong-doing of their employees acting ‘in the course of their employment’, unless they can satisfy a court or tribunal that they have taken ‘all reasonable steps’ to prevent the behaviour. 

All reasonable steps would include:

  • having policies and procedures dealing with issues such as discrimination, harassment, bullying and workplace violence, and a procedure for handling complaints and grievances;
  • providing appropriate and regularly reinforced staff training to make all staff aware of these policies and procedures and how they relate to their individual behaviour
  • ensuring that these policies and procedures are actually implemented
The employer argued that it was not responsible for behaviour of the caretaker as he was  acting outside the course of his employment, in his own home, when he carried out the attack. 

Decision

The Queensland Civil and Administrative Tribunal found that the caretaker was in fact acting in the course of his employment. This was because he was required to be available and fit to work between the hours of 10pm and 6 am and was provided with accommodation so that he could carry out his duties. 

The Tribunal also found that the employer had not taken any reasonable steps to prevent sexual harassment, as they had no policy on anti-discrimination and no education program in place. 

The employer and an individual employee were found jointly liable to pay the woman $313,316 in compensation.  

STU v JKL (Qld) Pty Ltd and Ors [2017] QCAT 505 (6 December, 2016) 

Take away points 

  • An employer will be vicariously liable for any wrong-doing by an employee who is acting in the course of his or her employment. 
  • An employer can avoid vicarious liability if they have taken all reasonable steps to prevent the wrongdoing. 
  • An employee may be in the course of employment even if they are not actually working, especially when they are on their employer’s premises or in a place provided by their employer and their employer expects them to be there for reasons connected with their job. ​  

Back to March 2017 - Equal Times Newsletter​​​​​​

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