Even if you have in place appropriate workplace policies and training for staff and management which makes it clear that workplace discrimination such as racial or sexual harassment is prohibited, you, as an employer, may still be vicariously liable for the discriminatory actions of your employees, as two recent court cases demonstrate.
Employers Found Vicariously Liable
Ms Richardson was employed by Oracle and had been the victim of numerous incidents of sexual harassment by another Oracle employee. As a result, she resigned her position and commenced proceedings against Oracle on the basis that it was vicariously liable for the actions of the harassing employee.
In Richardson v Oracle Corporation, the court found that Oracle’s policies were simply a rehash of those of its USA head office and not tailored to Australian legislation.
The full court awarded Ms Richardson $100,000 for general damages and a further $30,000 for economic loss.
More recently, the Federal Circuit Court found against Australia Post in respect of a racial discrimination claim, even though Australia Post had exemplary anti-discrimination policies in place and provided regular staff training.
In this case, the employee had been subjected to racial abuse over a three year period by a Australia Post manager and had made complaints about this to at least three management executives including the State Manager who either ignored or dismissed the employee’s complaints without making proper enquiries.
The take-out for employers is:
- Ensure you have clear anti-discrimination/harassment policies tailored to Australian requirements;
- Make sure your staff and managers are aware of the policies and that they receive regular training
If an incident does arise, make sure the complaint is not ignored and is effectively investigated so that an informed decision can be made as to whether the conduct amounts to discrimination or harassment and, if so, what is the appropriate remedial response.