21 July 2008

LEGAL - Untangling the vicarious liability defence in Webb

Key Points:
Policies, procedures, training and vigilance are all important in dealing with sexual harassment.

There is a long line of authority emphasising the importance of employers not only addressing and responding to sexual harassment and discrimination in the workplace, but preventing such conduct from occurring. If the employer fails to do so, it will be vicariously liable for the unlawful conduct of its employees. In Webb v State of Queensland [2006] QADT 8, despite the employer have relevant policies and conducting staff training, it was found to have been vicariously liable for the sexual harassment of one its employees. In particular, in this case, the employer was found to be vicariously liable when it failed to formally respond at an earlier time in relation to Ms Webb's claims of sexual harassment but had instead suggested that she try to informally resolve the issues with the perpetrator by asking him to cease the behaviour.


Ms Webb worked as a co-ordinator of the Sexual Assault Support Service for the Redcliffe-Caboolture Health Service District, which was run by the State of Queensland. Ms Webb alleged that she had been subject to sexual harassment from a co-worker, Mr Atman, who worked as a counsellor to persons affected by alcohol, tobacco and other drugs. The two worked within reasonably close proximity in an open plan office.

Ms Webb alleged that Mr Atman had sexually harassed her on various occasions between August 2001 and May 2002 by subjecting her to the following conduct:

  • openly staring and leering at her breasts;
  • touching her by rubbing her shoulders and neck and running his fingers lightly up and down her back;
  • hugging her;
  • asking her to hug him;
  • referring to her as "la petite poon poon" a slang term (possibly French) referring to her vagina;
  • making comments to her about his sexual relationship with his wife;
  • making comments of a sexual nature about Ms Webb's partner, such as that he hoped that her partner "tasted like honey";
  • pointing to his crotch during a conversation with her; and
  • causing pornographic emails to be sent to her email address.

Ms Webb brought the claim of sexual harassment against both Mr Atman and their employer, the State of Queensland. The claim against Mr Atman was resolved at a conciliation conference. What remained to be determined was the liability of the employer.

Section 133(1) of the Anti-Discrimination Act 1991 (Qld) provides that where an employee contravenes the Act (in this case, by allegedly engaging in sexual harassment), the employee and employer will be taken to be jointly and severally liable for the contravention, and action may be taken against either or both.

The State of Queensland sought to rely on the defence in section 133(2), which provides a defence to a claim made under section 133(1) if an employer can show, on a balance of probabilities, that they took reasonable steps to prevent the employee from contravening the Act. Alternatively, the State contended that the alleged conduct did not amount to sexual harassment within the meaning of section 119 of the Act, which sets out what constitutes sexual harassment.


The claim was heard before Member Peter Roney of the Queensland Anti-Discrimination Tribunal. Member Roney found that out of Ms Webb's claims, the following constituted sexual harassment within the meaning of section 119 of the Act:

  • the leering at Ms Webb's breasts;
  • the unwanted touching of Ms Webb's back and neck;
  • the reference to Ms Webb as "la petite poon poon", which although not precisely understood by Ms Webb, still humiliated and offended her, in regards to the history of her relationship with Mr Atman; and
  • the reference to Ms Webb's partner tasting like honey, which Member Roney said had obvious sexual connotation.

The other complaints were held not to fall within section 119. There was no evidence that the pornographic emails had been procured by Mr Atman.

Member Roney emphasised that for a successful defence to be made under section 133(2), an employer needs to have taken steps to prevent contraventions of the Act, rather than merely having taken steps to mitigate the effects of a contravention after it has occurred.

The State of Queensland argued that it had taken reasonable preventative steps in that it:

  • trained and tested Mr Atman on his understanding of its Code of Conduct, including giving him a copy of a policy entitled "Guidelines for Managers and Supervisors, Preventing and Resolving Sexual Harassment";
  • published its harassment policy on the web;
  • identified Ms Webb's reports of sexual harassment;
  • inviting Ms Webb to make a formal complaint about Mr Atman's conduct; and
  • conducted an informal investigation of the matters complained of, together with the eventual relocation of Mr Atman with a direction he no longer contact Ms Webb.

The State was aware of Mr Atman's conduct towards Ms Webb from August 2001, when Ms Webb had told Mr Atman's supervisor that Mr Atman was showing inappropriate interest in her breasts. In response, the supervisor told her to tell Mr Atman to cease the conduct. It was not until January 2002, when Ms Webb discussed Mr Atman's conduct with his supervisor and the team leader, that investigations were made regarding Mr Atman's conduct, including a meeting with Mr Atman on 22 February 2002. Following this, Mr Atman was counselled, moved to a different work location and eventually dismissed. Member Roney found that reasonable steps were taken to prevent contravention on and after this meeting.

However, the State was found to be vicariously liable for the conduct which occurred prior to the meeting with Mr Atman, which included the reference to her as "la petite poon poon" and the prolonged staring at her breasts. Member Roney determined that the managers had been made aware of the conduct in late 2001, but had failed to take reasonable steps to prevent it until January 2002. Informing Mr Atman of the sexual harassment policy during orientation was not considered to be enough to constitute the reasonable steps of prevention required by section 133(2). Nor was it sufficient to tell Ms Webb that she should speak to Mr Atman and ask him to stop. Nothing else had been done to ensure that Mr Atman understood that his conduct fell outside acceptable workplace limits. Thus, the State of Queensland was found to be vicariously liable for Mr Atman's conduct, and was ordered to pay $14,665 in compensation to Ms Webb.

Implications for employers

The importance of taking steps to prevent sexual harassment in the workplace cannot be underestimated. As an employer, if you fail to take reasonable steps to prevent sexual harassment, you will be found to be vicariously liable for the conduct of an employee.

To ensure "reasonable steps" are undertaken, employers should as a minimum:

  • have a sexual harassment policy which is communicated to staff from the commencement of their employment. It is important to ensure employees are aware of appropriate workplace conduct, and to notify employees of specific prohibited conduct such as sexual harassment, and ensuring staff know that such conduct will not be tolerated in the workplace;
  • have procedures for dealing with sexual harassment. Employers should not wait until formal complaints are made. If an employer becomes aware, informally, of sexual harassment occurring in the workplace, it is essential that they take action to prevent further harassment occurring. It is also important to note that, in some cases, informal action such as encouraging the complainant to simply approach the alleged harasser to cease the conduct may be inappropriate;
  • ensure that front-line managers are properly trained in relation to the employer's procedures for dealing with sexual harassment, so that appropriate action is taken at the time to not only address unlawful conduct but to prevent any further unlawful conduct.

As general rule, employers should also remain vigilant when it comes to monitoring the workplace to prevent unlawful conduct.


No comments:

Post a Comment