Interpreting Vicarious Liability with a Broad Brush in Sexual Harassment Cases

Parker Christine , ‘Public Rights in Private Government: Corporate Compliance with Sexual Harassment Legislation’ [1999] Australian Journal of Human Rights 6 <www.austlii.edu.au/au/journals/AJHR/1999/9.html> at 13 June 2008.

Elliott v Nanda (2001) 111 FCR 240 ( Moore J ). In this case, a woman was placed in employment with a doctor against whom numerous complaints of sexual harassment had been made.

Ronalds Chris and Pepper Rachel , Discrimination Law and Practice (2nd ed, 2004) 151.

In Huang v University of NSW [2005] FMCA 463, Driver FM dismissed the claim of vicarious liability, highlighting that the alleged offender was a PhD student at the university at the time of the alleged harassment and ‘the fact that he was at some time in receipt of a scholarship does not make him an employee or agent’.

SDA s 106(2). See also Hely Brook , ‘Open all Hours: The Reach of Vicarious Liability in Off-Duty Sexual Harassment Complaints’ (2008) Federal Law Review, in press, for discussion of nexus with employment in Australian and UK discrimination legislation.

[2007] FMCA 59.

Thanks to Keziah Judd for research assistance. Under s 28A of the SDA: (1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: ‘conduct of a sexual nature’ includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.

The vicarious liability section was s 108I in the Discrimination Act 1991 (ACT). Following the introduction of the Human Rights Commission Act 2005 (ACT) in 2006 the vicarious liability provision disappeared but it is anticipated by the Human Rights Commission that the provision will be (re)inserted soon. The authors thank ACT Discrimination Commissioner Dr Helen Watchirs for archived files and discussions. The views presented though are those of the authors who accept responsibility.

Easteal Patricia and Priest Susan , ‘Employment Discrimination Complaints at the ACT Human Rights Office: Players, Process, Legal Principles and Outcome’ (2006/2007) 8(1) Contemporary Issues in Law 71, 68. The proportion of harassment complaints declined by the Commissioner (19%) was significantly lower than for ‘motherhood’ (38%) and age cases (50%).

In 2007, the HRO was merged with two other Commissions and now is a part of the ACT Human Rights Commission.

(2006) 151 FCR 524.

Ibid 532.

[2004] FMCA 60.

[2005] FMCA 330.

[2006] FMCA 1336 (Connolly FM). Treacy was part of a work for the dole program placed at Mission Australia, which had a three-stage complaints process.

(2001) 163 FLR 58.

Ibid 80.

[2002] FMCA 109.

Ibid [135].

Ibid.

[2002] FCA 32.

(2005) 191 FLR 18.

(2004) 186 FLR 132.

South Pacific Resort Hotels Pty Ltd v Trainor (2005) 144 FCR 402, 416.

Ibid.

[2001] 1 NZLR 407.

Ibid.

South Pacific Resort Hotels Pty Ltd v Trainor, above n 24, 415–416.

(2006) 233 ALR 108.

Lee's case [207].

Smith v Christchurch Press Company Ltd, above n 26, stating that it had persuasive value although it was not jurisdictionally binding.

Lee's case [203].

Ibid [206].

Human Rights and Equal Opportunity Commission, Federal Discrimination Law 2005: Supplement 1 March 2005–1 July 2007, <www.hreoc.gov.au/legal/FDL/fed_discrimination_law_05/PDF/fdl_supplement07.pdf>.

Established in Boyle v Ishan Ozden (1986) EOC ¶92–165 and upheld in Johanson v Michael Blackledge Meats, above n 16.

(2000) 181 ALR 57.

Johanson v Michael Blackledge Meats, above n 16, 82.

Parker , above n 1.

[2001] FMCA 91.

Ibid [38].

[2002] FMCA 142.

Ibid [155].

Ronalds and Pepper, above n 3, 96. The 2004 HREOC Sexual Harassment Code is the third edition; the first was published in 1997. Human Rights and Equal Opportunity Commission, Sexual Harassment (A Code in Practice), 4.2.2 ‘Writing A Sexual Harassment Policy’, <www.humanrights.gov.au/sex_discrimination/workplace/code_practice/data/4_preventing.html#31>.

Johanson v Michael Blackledge Meats, above n 16, 81.

Human Rights and Equal Opportunity Commission, Sexual Harassment (A Code in Practice), above n 43, 4.2.2.

[2002] FMCA 81.

[2000] FMCA 2.

(2000) 181 ALR 57.

Trainor v South Pacific Resort Hotels Pty Ltd, above n 23.

Lee's case [198].

Ibid [158].

[2001] FMCA 66.

In March v Stramare (1991) 171 CLR 506, 515 ( Mason CJ ) it was held that in most cases the issue of whether one event caused another to happen is ‘one of fact and, as such, to be resolved by the application of commonsense’.

Ronalds and Pepper, above n 3, 146.