INSIGHT

Toothless sexual harassment training leaves employer liable for sexual harassment

By Sikeli Ratu, Erin Mangan
COVID-19 Employment & Safety

In brief 3 min read

In a recent appeal decision, an employer has been found liable for an employee's sexual harassment of a colleague because the employer's anti-harassment training failed to convey the seriousness of sexual harassment and, as a result, the employer did not take 'all reasonable steps' to deter sexual harassment in the workplace.

How does it affect you?

  • Employers should ensure they take 'all reasonable steps' to prevent their employees from engaging in sexual harassment and any behaviour contrary to the Commonwealth Sex Discrimination Act. If an employer does not, it is likely to be vicariously liable for employees' offending conduct.
  • What 'reasonable steps' means will depend all the circumstances of each case – eg the size of the organisation, the nature of its workforce, the conditions under which the work is carried out and any history of unlawful discrimination or sexual harassment.
  • Importantly, polices dealing with sexual harassment and sex discrimination should emphasise the seriousness of these issues and clearly explain the disciplinary consequences of engaging in such conduct.
  • Workplace policies concerning sexual harassment and other discriminatory behaviour must be communicated clearly to employees.

Background - Von Schoeler v Boral Timber [2020] FCAFC 13

Ms A worked for Boral Timber as a timber grader. She complained to her supervisor that one of her colleagues, Mr B, had groped her. She argued in the Federal Court that Boral Timber was vicariously liable for Mr B's sexual harassment.

In its defence, Boral Timber argued it should not be found liable because it took all reasonable steps to prevent Mr B from sexually harassing Ms A. In particular, Boral Timber had conducted specific training on its 'Working With Respect' policy, which Mr B had attended only four days prior to the sexual harassment incident.

Decision

The Full Court of the Federal Court found in Ms A's favour because:

  • Boral Timber had tendered limited evidence about the content of the 'Working With Respect' training;
  • there was no evidence that the training included any statement that disciplinary action would be taken in cases where sexual harassment was proven; and
  • the lack of evidence of steps taken by Boral Timber to convey the seriousness and consequences of sexual harassment to its employees meant it failed to take 'all reasonable steps' to prevent Mr B from engaging in sexual harassment.

The failure of Boral Timber to take all steps reasonable steps to prevent the harassment of Ms A meant that it was vicariously liable for Mr B's sexual harassment.

Without appropriate emphasis on the seriousness of sexual harassment, anti-harassment training lacks any meaningful deterrent effect. This decision confirms that, for an employer to take 'all reasonable steps', employees must understand the seriousness of sexual harassment in the workplace and the disciplinary consequences.