Updated: Sep 18, 2019
The Night Caretaker - Company vicariously liable for ‘on call’ sexual assault – STU v JKL (Qld) Pty Ltd & Ors  QCAT 505
An employee has been awarded over $300,000 by the Queensland Civil and Administrative Tribunal (“QCAT”) for a serious sexual assault perpetrated by a co-worker in a company-provided house, after hours. The sexual assault took place in 2014, in a house that both employees resided in while working. In brief, the Applicant, then aged 21, awoke in the middle of the night to find her co-worker (the Second Respondent), nearly 70, naked and attempting to undress her. She resisted and complained to her workplace, a large, well-known hotel chain. The Applicant claimed sexual harassment under the Anti-Discrimination Act 1991 (the “Act”), and in particular that the workplace was vicariously liable under that Act.
In addressing the company’s vicarious liability, the tribunal considered a number of factors, including whether the company required the Applicant to live with the Second Respondent, the nature of the Second Respondent’s duties, and the critical factor, whether the perpetrator was acting “in the course of work,” namely during the performance of his contract for services. As the perpetrator was the night caretaker at the time, and was required to remain sober and available for work, he was held to be in the course of work. The Tribunal applied a ‘wide and liberal interpretation’ of the phrase ‘in the course of work’, and rejected the submission that he was not working unless called on, even though he was ‘on call’. In order for the company to successfully defend the matter, it is required to show that it took all reasonable steps, and it argued there were no reasonable steps it could have taken, which was rejected by the tribunal.
1- The lesson for employers
While this is a Queensland case, businesses should be mindful that legislation in other states might also leave them vulnerable. For example, the NSW legislation also contains vicarious liability provisions for an act done by an employee, unless the employer did not expressly or impliedly authorise the employee to commit the act. While the language of the NSW legislation is slightly different to Queensland, the sort of issues that have been considered before are similar, including whether management had a general knowledge of such conduct and took any action. Once again, employers are required to show they took all reasonable steps.
2 - Take action on matters
Employers need to ensure that their workplaces are free from workplace harassment and discrimination, by up-to-date policies, agreements and ongoing trainings, and that any such conduct is dealt with promptly and effectively to protect employees and avoid the company being held vicariously liable.
Abby is a Senior Associate with Terri Bell & Co. Abby regularly advises and acts for employees and businesses alike regarding workplace issues in Australia. Her other extensive experience includes managing Grain Trade arbitrations and consulting in Cambodia on labour laws.
You can reach any of the team at Terri Bell & Co on 02 9191 9856.