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When an employee[1] sexually harasses a fellow employee away from the workplace or outside work hours, such as at a bar or a private party, difficult questions arise as to whether the employer should be held vicariously liable. Conversely, difficult questions arise as to the extent to which an employer might legitimately seek to supervise or regulate the conduct of its employees outside of work.
This article traces the key decisions that have considered this issue of sexual harassment away from the workplace or outside normal work hours (for convenience, I have referred to such conduct as 'off-duty sexual harassment').
As the discussion in Part Two illustrates, the leading decisions in the Australian federal jurisdiction considering the scope of vicarious liability for off-duty sexual harassment have taken a consistently broad approach to the requisite nexus with the employment. This culminated in the watershed decision of the Federal Magistrates Court last year in Lee v Smith,[1] where an employer was held vicariously liable when an employee raped a fellow employee at a private residence following a social dinner party.
Whilst the issue is yet to receive much attention in the States and Territories, consideration is given to the similarities and differences between the relevant statutory provisions in each of the State, Territory and federal jurisdictions. Consideration is also given to the approach taken in the United Kingdom, where the relevant statutory test is similar to that of several of the Australian States. In comparing each of the different statutory provisions, this article submits that the federal jurisdiction is likely to provide a more attractive avenue for applicants, at least in relation to the test for vicarious liability.
Consideration is also given to the inter-relationship between sexual harassment law and employment law (typically, unfair dismissal cases). Notwithstanding the differences between these two areas of law, it is submitted that a consistent approach in relation to the nexus with employment threshold is desirable. This would contribute to greater harmony in the respective rights and responsibilities of employers and employees alike.
Finally, this article contemplates the appropriate way forward in relation to off-duty sexual harassment. It is acknowledged that, in the march to eliminate sexual harassment in employment, courts need to be careful not to swing the pendulum too far against employers, lest other important employee rights be curtailed along the way. However, this article suggests that such concerns can be adequately addressed whilst still maintaining a broad approach to the question of whether off-duty sexual harassment is sufficiently connected with employment to attract the operation of vicarious liability provisions.
In short, the position at common law is that an employer is vicariously liable for acts committed by an employee in the course of his or her employment to the extent that the employee is acting within the scope of his or her authority and is performing employment duties or is otherwise performing acts incidental to the performance of those duties.[2] This extends to acts committed in the course of an unauthorised mode of carrying out an authorised act.[3]
By comparison, an employer is not vicariously liable at common law for acts committed by an employee outside the scope of his or her employment, commonly referred to as acts engaged in by the employee 'on a frolic of his (or her) own'.[4]
It is now fairly well settled that principles of vicarious liability derived from the common law are inappropriate when applying sexual harassment legislation. Rather, the courts have acknowledged that the relevant provisions conferring liability on an employer are to be construed in a manner consistent with the remedial purposes of such legislation.
In Canada, this was settled by the Supreme Court in Robichaud v Canada.[5] Justice La Forest, who delivered the decision of the Court, rejected the application of common law principles of vicarious liability derived from torts, on the basis that such principles were aimed at:
...activities somehow done within the confines of the job a person is engaged to do, not something, like sexual harassment, that is not really referable to what he or she was employed to do.[6]
The same approach was taken by the United Kingdom Court of Appeal in Jones v Tower Boot Co Ltd.[7] For instance, Waite LJ noted that the application of common law principles of vicarious liability would lead to a result entirely incongruous with the objects of anti-discrimination legislation, whereby 'the more heinous the act of discrimination, the less likely it will be that the employer would be liable.'[8] His Honour held that such an approach:
...cuts across the whole legislative scheme and underlying policy [of the relevant Act] ... which is to deter racial and sexual harassment in the workplace through a widening of the net of responsibility beyond the guilty employees themselves.[9]
In Australia, the leading authority on this point is the decision of the Full Federal Court in South Pacific Resort Hotels Pty Ltd v Trainor.[10] The facts and reasoning in Trainor are discussed in greater detail below. Suffice to note here, however, that Kiefel J applied the reasoning in both Robichaud and Tower Boot to support her conclusion that tort principles of common law were not appropriate to the issue of vicarious liability for sexual harassment under s 106(1) of the Sex Discrimination Act 1984 (Cth) ('SDA').[11] The joint judgment of Black CJ and Tamberlin J adopted a similar approach, concluding that cases decided under common law principles 'can have, at best, only limited value in the quite different context of the SDA.'[12]
However, accepting that tort principles are not appropriate, this nevertheless leads one to ask what is the scope of vicarious liability for off-duty sexual harassment? And to what extent is a nexus with the workplace required? As the following discussion illustrates, this question has been answered broadly in the Australian federal jurisdiction.
Under the SDA, vicarious liability arises by operation of s 106(1), which provides:
106. Vicarious liability etc
(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment
of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
Division 3 of Part II (referred to in paragraph (b) above) is the relevant Division of the SDA that makes sexual harassment unlawful. So, for present purposes, the effect of s 106(1) is to make an employer prima facie vicariously liable for sexual harassment committed by an employee where that harassment occurs 'in connection with the employment of the employee'. For convenience, I have referred to this as the 'nexus requirement' of vicarious liability
Of course, this is not the end of the matter. Section 106(2) of the SDA goes on to provide an 'all reasonable steps' defence to employers. It states that sub-s (1) does not apply:
...if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in [paragraph (1)].
Whilst outside the scope of this article, it is also relevant to note that s 105 of the SDA makes it unlawful for a person to instruct, induce, air or permit another person to do an act that constitutes sex discrimination under the SDA (which by implication may also include an act of sexual harassment[13]). This article also does not address other types of claims that may be available to victims of off-duty sexual harassment, such as in contract, tort or criminal law.
Where sexual harassment occurs in the workplace, establishing that the conduct was 'in connection with the employment' for the purposes of s 106(1) is generally straightforward.[14] However, in the context of off-duty sexual harassment, the situation is more complex. The following section outlines the three leading decisions in the federal jurisdiction to have considered this issue.
The first Australian decision to squarely consider the scope of s 106(1) outside the normal work context was the decision of the Federal Court in Leslie v Graham.[15] The applicant in that case shared a two bedroom serviced apartment with a fellow employee, Lincoln Graham, whilst attending a regional conference. In the early hours of the morning following a social event held as part of the conference, Mr Graham returned to the apartment drunk and sexually harassed the applicant.
Justice Branson, who decided the case, held that Mr Graham's conduct constituted sexual harassment by one employee against a fellow employee for the purposes of s 28B(2) of the SDA,[16] notwithstanding that the harassment had occurred away from their normal workplace. Her Honour also held the employer (Roger Graham & Associates) vicariously liable for his conduct.
The relevant passage from her Honour's judgment[17] essentially deals with the issues of s 28B(2) and vicarious liability together.[18] Her Honour noted that at the time of the incident, the applicant and Mr Graham were in a 'continuing relationship' as fellow employees. They were also sharing the apartment 'in the course of their common employment' and the accommodation had been provided to them by their employer for the purposes of attending a work-related conference. As such, her Honour held that: 'It could not, in my view, be suggested that their common employment was unrelated, or merely incidental, to the ... incident.'[19]
The next federal case of significance is the 2005 decision of the Full Federal Court in Trainor.[20] The applicant in that case was employed by the respondent in its hotel on Norfolk Island. The hotel made optional accommodation available for staff in a separate building which formed part of the hotel complex. The applicant stayed in this accommodation, with her room being adjacent to the room of a fellow employee, Mr Anderson.
The applicant made two allegations of sexual harassment against Mr Anderson. Both incidents occurred in the early hours of the morning in the applicant's room, with one of the incidents occurring after a staff function.
The Full Court accepted that the harassment on each occasion had occurred 'in connection with' Mr Anderson's employment, notwithstanding that it had occurred whilst both he and the applicant were 'off-duty' and were not performing any function in relation to their employment. In the joint judgment of Black CJ and Tamberlin J, their Honours emphasised that the expression 'in connection with the employment' in s 106(1) was 'a broad one of practical application'.[21] Their Honours also applied the decision in Leslie, noting that the facts in Trainor suggested an even closer link to the employment. Pursuant to the employer's policies, visitors were not allowed in the staff accommodation. It was therefore only by reason of their common employment that both Mr Anderson and the applicant happened to be there.[22]
Justice Kiefel delivered a separate judgment, in which she agreed with the majority but added some further comments in relation to vicarious liability. Like the majority, Kiefel J emphasised the beneficial objects of the SDA, including the object described in s 3(c) of the SDA 'to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace'.[23] Against this backdrop, her Honour held the meaning of the expression 'in connection with the employment' in s 106(1) required a broad construction. Her Honour also emphasised that common law principles of vicarious liability derived from tort law were not appropriate in the context of applying the SDA.[24]
In relation to the particular facts of the case, her Honour noted that the conduct occurred 'between two employees in accommodation provided by the employer as an incident of employment'.[25] Furthermore, the employees' rooms were 'in close proximity to each other and they were accessible'[26] and the circumstances created by the employer had allowed the incident to occur in the early hours of the morning.[27] Finally, her Honour noted that the second incident had occurred following a staff function at which Mr Anderson had consumed alcohol.[28] For all of these reasons, her Honour accepted that Mr Anderson's conduct on each occasion has occurred in connection with his employment.[29]
The third federal case of significance is the 2007 decision of the Federal Magistrates Court in Lee.[30] This decision represents the most far-reaching application of the nexus requirement in s 106(1) and is unique in respect of both the nature of the particular sexual harassment (rape) and the context in which the sexual harassment occurred (at a private residence following a dinner party).[31]
The applicant in Lee was employed by the Commonwealth Department of Defence ('the Department') in an administrative position in Cairns. Her claim of sexual harassment involved three aspects (all of which were accepted):
• Pornography in the workplace generally.[32]
• A fellow employee, Mr Smith, sexually harassing her during a computer training course provided by the Department, and in the weeks thereafter leading up to the rape.[33] For example, on one occasion Mr Smith wrote a succession of notes to the applicant saying that he had a hole in his jeans, was not wearing any underwear and could touch his penis through the hole. He then exposed his penis through the hole in his jeans.[34]
• Mr Smith subsequently raping the applicant at a private residence on the morning of 3 March 2001.
In relation to the rape, the evidence of the applicant (which Connolly FM accepted[35]) was as follows:
• On 2 March 2001, the applicant accepted an invitation from a fellow employee, Ms O'Shannessy, to attend after-work drinks with some other employees. However, when the applicant arrived, she learned that the drinks had moved to Ms O'Shannessy's house. She then travelled with Mr Smith to the house.
• When the applicant arrived, the only persons present were Ms O'Shannessy and her fiancé Mr Storey (who was also an employee of the Department), as well as Mr Smith. They drank wine together, which was the applicant's first time drinking red wine.
• Several hours later, the applicant suddenly realised how intoxicated she was when she went to the toilet and needed help re-dressing herself. Shortly afterwards, she passed out on the couch.
• The applicant awoke the following morning to find that she was being sexually penetrated by Mr Smith.[36]
Federal Magistrate Connolly held that the rape had occurred 'in connection with' Mr Smith's employment, primarily on the basis that:
...the rape was the culmination of the earlier incidents of sexual harassment directly in the workplace.[37]
Consequently, his Honour held, Mr Smith's conduct:
...was an extension or continuation of his pattern of behaviour that had started and continued to develop in the workplace he shared with the Applicant. The nexus with the workplace was not broken.[38]
His Honour also noted a number of other relevant factors to illustrate that the rape was connected to the employment, including the fact that the Applicant was invited to attend after-work drinks by a fellow employee at the behest of Mr Smith. Further, his Honour held that the rape was the culmination of a series of sexual harassments by Mr Smith in the workplace and there was no doubt that the incident adversely affected the working environment.[39] Moreover, in relation to the involvement of Mr Storey and Ms O'Shannessy, his Honour held that the rape would not have occurred but for their 'collusion', and that:
The Applicant's attendance was clearly because of the original after-work drinks invitation and it was likely that the invitation was provided in that form to ensure the Applicant's attendance.[40]
His Honour also held that the applicant had been given no relevant training in sexual harassment. Such training, his Honour held, may have prevented matters from escalating to the point of the rape by assisting the applicant to report the earlier pornography and sexual harassment within the workplace.[41]
As the above discussion highlights, the federal authorities have adopted a consistently broad approach to the nexus requirement under s 106(1).[42] This has been on the basis that such an approach reflects the broad language Parliament has used in that section and is an approach that best advances the beneficial objects of the SDA.
In particular, the federal authorities have not confined the scope of s 106(1) to conduct occurring whilst employees are 'on-duty' or on work premises. As the decision in Lee highlights most clearly, provided that the off-duty sexual harassment can be seen as an extension or culmination of events occurring within the workplace, the nexus requirement under s 106(1) will be met.
The decision in Lee is certainly the most far-reaching application of s 106(1) to date. Whilst the circumstances immediately surrounding the sexual harassment in both Leslie and Trainor had a relatively close connection with the working context, the circumstances in Lee were significantly less so. However, as the reasoning in Lee demonstrates, it is necessary to have regard to more than simply the immediate circumstances of the sexual harassment in determining whether it occurred in connection with the employment.
The extent to which events within the immediate work context put in train key events, or allowed events to escalate, are also relevant, perhaps critical, in considering the requisite connection between the harassment and the employment. This is particularly so in cases such as Lee, where the applicant was ill-equipped through lack of training and a poor workplace culture in relation to sexual harassment matters, and where there was a persistent pattern of sexual harassment within the workplace. As the Court found, these factors had a significant role in contributing to the escalation of events.
With the exception of the recent interlocutory decision of the Victorian Civil and Administrative Tribunal (VCAT) in A v K Ltd & Z (Anti-Discrimination)[43] (discussed below), the issue of vicarious liability for off-duty sexual harassment is yet to be squarely considered by any of the State or Territory courts or tribunals.[44] Rather, decisions dealing with vicarious liability have, to date, tended to turn mostly on the second limb of vicarious liability for sexual harassment — whether the employer had taken reasonable preventative steps.
It therefore remains to be seen how far the State and Territory courts and tribunals will extend the nexus requirement in cases of off-duty sexual harassment. In difficult cases, the wording of the relevant statutory provisions may prove decisive. As the following discussion illustrates, these provisions contain subtle, but potentially significant, variations.
The relevant provisions in Western Australia and the Northern Territory dealing with the nexus requirement for vicarious liability are similar to s 106(1) of the SDA, using the expression 'in connection with' work/employment.[45] One might therefore expect a similar approach to be taken in respect of this expression as has been taken in the federal jurisdiction discussed above.
In Tasmania, the statutory scheme is slightly different, although it would also appear to turn on whether the harassment occurred 'in connection with' employment. Under the Anti-Discrimination Act 1998 (Tas), s 104(1) and (2) impose a number of obligations on an employer in relation to ensuring compliance with the Act by its employees. It obliges employers to make their employees aware of what conduct is prohibited under the Act and to take reasonable steps to ensure that employees do not engage in prohibited conduct. If an employee engages in prohibited conduct, s 104(3) makes the employer liable if it has failed to comply with the obligations imposed under sub-ss (1) and (2).
On its face, the scope of an employer's vicarious liability under s 104 is potentially very broad. However, that scope would appear to be limited by s 22, which limits the operation of the Act generally to 'discrimination or prohibited conduct ... by or against a person engaged in, or undertaking any, activity in connection with... [inter alia] employment.' (emphasis added) Thus, whilst the issue of vicarious liability for sexual harassment is yet to receive any real attention in the Tasmanian courts and tribunals, it would appear that the relevant nexus requirement is confined to conduct 'in connection with' employment. Again, therefore, one might expect a similar approach to the broad approach taken in the federal jurisdiction.
In Queensland, Victoria and South Australia, the relevant statutory provisions use the expression 'in the course of' work/employment,[46] rather than 'in connection with' employment.
The question of whether (or the extent to which) the phrase 'in the course of' is narrower than 'in connection with' is likely to remain contentious. In the federal decisions to date, the authorities have yet to reach a firm view. On the one hand, the joint judgment of Black CJ and Tamberlin J in Trainor noted in passing that the expression 'in connection with the employment':
...would seem, on its face, to be somewhat wider than the familiar expression 'in the course of' used with reference to employment in cases about vicarious liability at common law or in the distinctive context of workers compensation statutes.[47]
In McAlister v SEQ Aboriginal Corporation,[48] Rimmer FM also considered that the expression 'in connection with' in s 106(1) was wider than the expression 'in the course of'.[49]
By contrast, Kiefel J in Trainor appeared to regard this variance in expression as insignificant, at least insofar as not affecting her conclusion that tort principles of vicarious liability did not apply to the SDA. Her Honour referred to a number of overseas authorities where the relevant statutory context spoke of acts occurring 'in the course of' employment and then observed:
There the words under consideration (in the course of employment) might be thought to suggest a closer analogy to tort law than those of the SDA (in connection with the employment), but I do not think anything turns upon the difference in language. The provisions are directed to the same purposes and should be construed accordingly. There seems no reason to regard them as stating a different requirement in relation to the conduct.[50]
As her Honour intimates, an argument could certainly be made that, notwithstanding the narrower choice of language, a broad approach to the expression 'in the course of' may nevertheless be appropriate in order to promote the beneficial objects of such legislation. As discussed below, there is some UK authority to support such an approach.
At the State level, this issue arose for consideration in the recent VCAT decision of A v K Ltd.[51] As noted earlier, this appears to be the first decision at the State or Territory level to squarely consider the application of the nexus requirement in the context of off-duty sexual harassment.
The decision of VCAT in A v K Ltd indicates that, at least in Victoria, the narrower statutory language of 'in the course of' may prove significant in the application of the nexus requirement. The facts of the case involved two allegations of sexual harassment against the applicant's workplace supervisor, 'Z'. The first incident occurred at and subsequent to a birthday party held at a public hotel. The party was attended by employees and non-employees of the applicant's employer, K Ltd ('the employer'). The applicant alleged that, during the evening, Z made a number of sexually inappropriate remarks and telephone calls, as well sending a number of sexually inappropriate text messages.
The court summarily dismissed the applicant's allegations regarding the first incident on the basis that the events had not occurred 'in the course of' the applicant and Z's common employment. The applicant had argued that it was by reason of Z's workplace superiority that he had felt intimidated and therefore partially acquiesced in Z's conduct. In addition, the applicant noted that the events had arisen out of a social gathering of work colleagues, several of the inappropriate comments arose out of work-related conversations, the text messages were sent from Z's work mobile phone and the incident would not have occurred but for their common employment.
However, the Tribunal held that the nexus between the incidents and A's employment was only 'slight'.[52] It observed:
The conduct did not occur in the work place, or in the ordinary or overtime hours of work, the function was a private one and it was not authorised by the company.[53]
The Tribunal then noted that the Victorian Parliament had not chosen the phrase 'in connection with', as used in the SDA, so it was inappropriate to apply cases concerning the scope of that phrase when applying the Victorian Act.[54] Crucially, the Tribunal's application of the phrase 'in the course of' displayed a significantly more narrow approach than that taken in the federal jurisdiction, as the following passage illustrates:
...the conduct complained of must not merely be between two people who happen to have a common employer, but must be in the capacity of employee. The harassment must take place within the scope of the common employment rather than in circumstances where common employment is a mere incidental factor.[55]
The second incident alleged by the applicant occurred following a social function sponsored by the employer. Both the applicant and Z were required to attend the function and the employer had paid for the applicant's accommodation at a particular hotel. After the function, a group of employees (including the applicant and Z) moved to a nearby bar, where the drinks were paid for by the employer. The applicant alleged that his next recollection was awaking in the early hours of the morning in his hotel room being sexually harassed by Z.
In relation to the second incident, the Tribunal declined to summarily dismiss the claim on the basis that the facts were heavily disputed and 'it would be inappropriate to dispense with a consideration of the complainant's evidence at this stage.'[56] Accordingly, the Tribunal held that the allegations surrounding the second incident should proceed to hearing.[57]
In New South Wales, pursuant to s 53(1) of the Anti-Discrimination Act 1977 (NSW), an employer is liable for an act done by a person 'as the employee' of the employer. The decision of the NSW Supreme Court in Shellharbour Gold Club Ltd v Wheeler[58] suggests that s 53(1) requires a relatively close nexus between the harassment and the employment. Justice Studdert noted:
...as I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.[59]
However, the requirement that the impugned act be committed by the person 'as the employee' would appear to import a similar nexus requirement to the 'in the course of employment' threshold. My comments below (and above) about this expression being, on its face, narrower than 'in connection with' but nevertheless capable of a broad construction would again apply.
The position in the ACT regarding vicarious liability is unclear. The now repealed s 108I(3) of the Discrimination Act 1991 (ACT) ('Discrimination Act') had previously made an employer vicariously liable for acts committed by an employee 'within the scope of his or her actual or apparent authority'. That section had appeared in Part 8 of the Act, which predominantly contained the complaints-handling machinery provisions of the Act although also contained several 'miscellaneous' provisions, of which s 108I was one.
The Discrimination Act was then amended by the Human Rights Commission Legislation Amendment Act 2005 (ACT) as part of a raft of legislative reforms to create the new ACT Human Rights Commission and, amongst other things, confer on it the complaints-handling function previously exercised by the Discrimination Commissioner. In the process, the former Part 8 of the Discrimination Act was substituted with a new (much shorter) Part 8, which essentially deleted the complaints-handling machinery provisions and only retained the 'miscellaneous' provisions. Curiously, however, s 108I was left out. Furthermore, no alternate provision dealing with vicarious liability was inserted into either the Discrimination Act or the Human Rights Act 2004 (ACT) (or anywhere else). To add to the confusion, the explanatory memoranda and parliamentary debates in respect of the relevant amending legislation do not explain, justify or even refer to the scrapping of vicarious liability. This raises a question as to whether the scrapping was actually intended.[60] If so, one might reasonably ask, why?
As far as I am aware, the ACT courts and tribunals have yet to consider the issue of vicarious liability under the Discrimination Act since the relevant amendments. Indeed, of the handful of decisions to have considered the issue under the former legislation, aside from briefly acknowledging that employers may be vicariously liable for sexual harassment between fellow employees, the decisions provided little guidance on the requisite nexus with the employment.[61]
Nevertheless, notwithstanding the absence of vicarious liability provisions in the Discrimination Act, this does not necessarily preclude the possibility of an employer being found personally liable for sexual harassment engaged in by one of its employees. In M v R Pty Limited,[62] for example, the NSW Equal Opportunity Tribunal held that an employer could be personally liable for discrimination (in that case, discrimination in the form of sexual harassment) where it has contributed to a hostile work environment in which the harassment occurred. It noted four examples of where an employer might be held personally liable for such conduct:[63]
• where the discriminatory act or conduct is personally performed by the employer;
• where, in the case of an incorporated entity, the discriminatory act or conduct is performed by a 'senior official' who represents the 'mind or will' of the entity;
• where the discriminatory act or conduct is that of a person who has the function of setting the terms or conditions of the aggrieved employee;
• where the discriminatory act or conduct is engaged in by an employee not falling into the above categories, but whose conduct is known to persons in the above categories and 'by active condonation or inactivity, no prompt or adequate steps are taken by or on behalf of those in any of the first three categories to rectify the adverse work conditions.'
It is also worth noting that s 73 of the Discrimination Act makes a person personally liable if he or she 'aids, abets, counsels or procures someone else' to engage in an act of sexual harassment.
Alternatively, even outside the operation of the Discrimination Act, vicarious liability might potentially be found under the application of common law principles in a tort-based claim relating to the alleged sexual harassment.[64] Or, an employer that fails to take reasonable steps to prevent sexual harassment might potentially be held liable in contract for breach of an implied term to provide a workplace free from sexual harassment.[65]
Aside from a narrower statutory test in respect of the nexus requirement, the relevant legislative provisions in some of the States and Territories also impose additional difficulties to a prospective applicant in establishing vicarious liability.
In NSW, in addition to an 'all reasonable steps' defence,[66] an employer may also avoid liability if it can establish that it 'did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.'[67] (emphasis added)
Indeed, in Shellharbour, Studdart J made it quite plain that his Honour considered that s 53(1) provides a more favourable defence for employers than compared with s 106(2) of the SDA.[68]
In South Australia, s 91(1) of the Equal Opportunity Act 1984 (SA) makes an employer vicariously liable for acts of an employee committed 'in the course of' his or her employment. However, s 91(2) goes on to provide:
A person is not vicariously liable for an act of sexual harassment committed by an agent or employee, unless the person instructed, authorised or connived at that act. (emphasis added)
It has been held that s 91(2) creates an onus on the part of the applicant to prove that the employer actually instructed, authorised or connived at the harassment.[69] In effect, this creates a presumption against vicarious liability which the applicant must discharge.
Unlike the 'all reasonable steps' defence available under the SDA[70] (and some other Australian jurisdictions[71]), an employer in Queensland or Tasmania need only establish that it took 'reasonable steps'[72], or in Victoria 'reasonable precautions',[73] to avoid vicarious liability.[74]
'Reasonable steps' would appear to impose a lower threshold than 'all reasonable steps'. The former arguably requires proof of only two or more reasonable steps that were taken. The latter, by contrast, arguably permits a court to identify a reasonable step that was not taken and the defence fails, irrespective of how many other reasonable steps were in fact taken. For example, in the recent Victorian decision of Walgama v Toyota Motor Corporation Australia Ltd (Anti-Discrimination),[75] in referring to the 'reasonable precautions' defence the Victorian Civil and Administrative Tribunal observed:
The criterion of what is 'reasonable' is not very high or very exacting. ... Management cannot be expected to supervise every word that comes out of the mouth of a worker.[76]
This might be contrasted with the comments of Connolly FM in Lee that:
I also agree with the submissions of the Applicant's counsel that the s 106(2) defence should be assessed rigorously with respect to the obligation to take 'all reasonable steps'.[77]
Similarly, in Caton v Richmond Club Limited,[78] the NSW Administrative Decisions Tribunal noted (in relation to the 'all reasonable steps' defence):
The wording of s 53(3) is plain enough, the taking of reasonable steps is not enough, employers must take all reasonable steps to avoid liability.[79]
As the above passages indicate, respondents are likely to find greater comfort in having to prove only that they took reasonable steps, compared with all reasonable steps.
For the above reasons, the federal jurisdiction would appear to provide a more attractive avenue to applicants in respect of off-duty sexual harassment, at least in relation to the question of vicarious liability.
First, the federal jurisdiction has developed a relatively uniform and well-settled body of law confirming the need to adopt a broad approach. Second, several of the States and Territories impose a narrower statutory test for the nexus requirement. Finally, additional difficulties are imposed under the legislation in several of the States and Territories, by either:
• imposing an additional onus on the applicant (South Australia),
• making available an additional line of defence to the respondent (New South Wales); or
• establishing a less onerous defence for the respondent to avoid liability (Queensland, Tasmania and Victoria).
Of course, the above advantages relate only to the legal test for vicarious liability. An applicant would need to weigh up all competing procedural and substantive differences between the two competing jurisdictions in considering where to commence his or her claim.[80]
Furthermore, notwithstanding the advantages to applicants created by the language of the SDA in relation to vicarious liability, this article submits that such differences in statutory language do not necessarily preclude the State and Territory courts and tribunals from also taking a broad approach to the nexus requirement under their respective legislation. As discussed below, there is some UK authority to support such an approach being taken, notwithstanding a narrower statutory test.
In the UK, vicarious liability for sexual harassment turns on whether the harassment occurs 'in the course of' the harasser's employment.[81] Given that this same statutory test also applies in Victoria, Queensland and South Australia (and in New South Wales the statutory test is arguably to the same effect), it is relevant to consider how the UK courts have considered the scope of that expression in the context of off-duty sexual harassment. As the following discussion illustrates, the UK courts have essentially divided between a broad approach (consistent with the Australian federal authorities) and a narrow approach.
The leading UK decision under the broad approach is the decision of the Employment Appeal Tribunal in Chief Constable of Lincolnshire Police v Stubbs.[82] In Stubbs, the applicant was a police officer who was sexually harassed by a fellow officer on two separate occasions at local pubs. The first was during after-work drinks and the second was during a farewell event for a fellow officer. The Tribunal at first instance accepted that both events occurred 'in the course of employment', holding that that expression should be construed broadly. In relation to the first incident, the Tribunal held:
Attending a public house for relaxation immediately after the end of the working day is, in our view, merely an extension of employment.[83]
Likewise, in relation to the second incident, the Tribunal held:
Neither [the applicant nor the officer who harassed her] would have been at the party [at the pub] but for their connection with the regional crime squad. The party was an extension of work and the workplace.[84]
And further (speaking of both incidents):
In our judgment, these incidents were connected to work and the workplace. They would not have happened but for the applicant's work. Work related social functions are an extension of employment and we can see no reason to restrict the course of employment to purely what goes on in the workplace.[85]
On appeal to the Employment Appeal Tribunal, Morison J, who delivered the judgment on behalf of the Tribunal, agreed with the reasoning at first instance. His Honour added that it would have been different 'had the discriminatory acts occurred during a chance meeting ... at a supermarket, for example.'[86] However, his Honour held that when there is a social gathering of work colleagues 'it is entirely appropriate for the tribunal to consider whether or not the circumstances show that what was occurring was an extension of their employment.'[87] His Honour added that the question of whether the person is on duty, and whether the conduct occurred on the employer's premises, are not determinative of the issue. These are, his Honour held, 'but two of the factors which will need to be considered'.[88]
The decision in Stubbs has been applied by the Australian courts in Trainor[89] and Lee.[90] It was also subsequently applied by the UK Employment Appeal Tribunal in Livesey v Parker Merchanting Ltd.[91] In that case, the applicant was subjected to mild sexual taunts in the workplace by a more senior employee, Mr Newton, as well as further mild acts of sexual harassment during the office Christmas party. At the end of the party, both the applicant and Mr Newton received a lift home in the same car. During that journey, Mr Newton committed much more serious acts of sexual harassment against the applicant.
At first instance, the Tribunal held that the sexual taunts in the workplace and the harassment at the Christmas party were acts occurring in the course of Mr Newton's employment. However, it distinguished this finding from the acts that occurred in the car on the way home from the party. On appeal, the Employment Appeal Tribunal disagreed with this delineation. It applied Stubbs and held that the acts in the car were a culmination of a continuous course of conduct by Mr Newton and therefore should have been treated as acts committed 'in the course of' his employment.[92]
In contrast to the above two decisions, a narrower approach was taken in Waters v Commissioner of Police of the Metropolis.[93] In Waters, the applicant was a police officer who resided in accommodation provided by the police department for its officers, known as a 'section house'. As was the case in Trainor, residence in the section house was optional. In the early hours of one morning, a fellow officer (identified in the case as 'T') who did not reside in the section house but who was an acquaintance of the applicant, attended the applicant's room and subsequently raped her.
The Court of Appeal concluded that the rape did not occur in the course of T's employment, for the following reasons:
T and the applicant were off duty at the time of the alleged offence. He lived elsewhere, and was a visitor to her room in the section house at a time and in circumstances which placed him and her in no different position from that which would have applied if they had been social acquaintances only, with no working connection at all.[94]
A narrow approach was also taken in Sidhu v Aerospace Composite Technology Ltd,[95] a case involving vicarious liability for racial harassment. In Sidhu, the applicant attended a picnic organised by his employer for its employees and their friends and family. During the picnic, an argument broke out in which one of the employees, Mr Smith, racially abused the applicant and his wife. At first instance, the Tribunal held that the actions of Mr Smith were not 'in the course of' his employment, on the basis that:
• the events did not occur at the place of employment, but at a public park;
• the event did not occur during working hours and everyone who attended did so on their own time; and
• the majority of attendees were friends and family rather than employees.[96]
On appeal, the Court of Appeal upheld the decision at first instance. However, rather than wholly endorsing the reasoning at first instance, the Court was careful to emphasise that the decision had been reasonably open to the Tribunal on the facts and it would therefore not be appropriate to disturb its decision on appeal.[97]
It is difficult to reconcile the UK decisions discussed above. Rather, the decisions serve to illustrate that, when applying the expression 'in the course of employment' in the context of vicarious liability for off-duty sexual harassment, it would be open to a court to take either a broad or a narrow approach. As noted above, in Sidhu the Court of Appeal essentially regarded the matter as predominantly a question of fact over which an appellate court should exercise great caution before disturbing. The Court referred to the decision in Stubbs and, rather than disapprove of the broad approach there taken, simply stated:
But the appeal tribunal there stressed that each case would depend on its own facts, calling for the good exercise of judgment by an industrial jury. I recognise that another tribunal could properly have reached the conclusion that the incident on the day out [ie, at the family picnic at issue in Sidhu] was in the course of employment. But in my judgment it is quite impossible to say that no tribunal could have reached the conclusion which the majority did on this point.[98]
On the one hand, the central role played by the facts in the court's assessment of the nexus requirement serves to illustrate that, in those Australian jurisdictions employing the language 'in the course of' employment, there is greater scope for uncertainty. This is illustrated by the arguably inconsistent approach taken in the UK authorities discussed above when applying this test. Accordingly, the federal jurisdiction provides greater comfort to applicants in the consistency of the approach taken under the broader statutory test.
On the other hand, however, the decisions in Stubbs and Livesey illustrate that the apparently narrower statutory language ('in the course of') does not necessarily preclude a broad approach being taken. For the reasons discussed later in this article, such a broad approach should be preferred by the courts in the relevant States and Territories when considering the scope of the nexus requirement under their respective legislation.
In considering the scope and future direction of vicarious liability for off-duty sexual harassment, it is also critical to have regard to the somewhat parallel body of employment law involving allegations of unfair dismissal (or other disciplinary action) in response to an employee's off-duty misconduct. As Mary-Jane Ierodiaconou has noted:
The issue of what constitutes conduct in the course of employment is one which has frequently arisen in the context of unfair dismissal claims and in disciplinary tribunals in cases in which an employee has challenged the employer's actions to demote or terminate his or her employment.
These cases involve a balance between the right of employees to have a private life over which their employer has no jurisdiction and after-hours conduct of an employee which will adversely affect the employer.[99]
It is submitted that employment law cases involving off-duty sexual harassment are relevant to a full and proper assessment of how best to apply the nexus requirement under sexual harassment laws. Such employment law cases involve what is essentially the opposite side of the same coin — to what extent may an employer lawfully seek to regulate the off-duty conduct of its employees? Importantly, the breadth of approach taken in one legal context may have implications for how the law in the other context can be sensibly applied.
As the following discussion illustrates, there are therefore strong reasons in favour of a consistent approach being taken between these two bodies of law. In particular, this would contribute to a greater degree of certainty, at least conceptually, as to the limits of an employer's control over, and liability for, the private lives of its employees.
Interestingly, it is perhaps worth noting that the line of argument of the parties is inverted in the employment law context, with the employer arguing that there is a sufficient connection between the employment and the off-duty misconduct so as to justify the dismissal or taking of disciplinary action.
As a general proposition, the courts in the employment law context have recognised that an employer should not seek to overly regulate the private lives of its employees. For example, in Rose v Telstra Corporation Limited,[100] Ross VP noted:
[E]mployers do not have an unfettered right to sit in judgment on the out-of-work behaviour of their employees. An employee is entitled to a private life.
Similarly, in GrainCorp Operations Limited re S Markham v GrainCorp Operations Limited,[101] the Full Bench of the Australian Industrial Relations Commission ('AIRC') noted:
It is true that only in exceptional circumstances will an employer be given an extended right of supervision over the private activities of employees.[102]
Nevertheless, as the above passage contemplates, exceptional circumstances may permit an employer to dismiss or discipline an employee as a result of his or her off-duty conduct. The leading statement on the issue comes from Ross VP in Rose, as follows:
It is clear that in certain circumstances an employee's employment may be validly terminated because of out of hours conduct. But such circumstances are limited:
• The conduct must be such that, viewed objectively, it is likely to cause serious damage to the relationship between the employer and employee; or
• The conduct damages the employer's interests; or
• The conduct is incompatible with the employee's duty as an employee.
In essence the conduct complained of must be of such gravity or importance as to indicate an objection to or repudiation of the employment contract by the employee.[103]
In applying the above general principles in the context of off-duty sexual harassment, the courts have generally (but not always[104]) taken a broad approach to the question of whether there was a sufficient nexus with the employment.
For example, in NSW Attorney-General's Department v Miller,[105] the applicant's employment was terminated as a result of a series of acts of off-duty sexual harassment against fellow employees, including at a farewell function for an employee at a hotel, at lunchtime, during a game of lawn bowls attended by a group of employees and at a couple of local hotels outside of work hours. The NSW Industrial Relations Commission accepted that each incident was sufficiently connected with the applicant's employment, noting in particular his position of seniority to the recipients of the harassment.[106]
In GrainCorp, the applicant made a number of loud and sexually offensive comments about a fellow employee late one evening when they were staying in adjoining hotel rooms whilst attending a work-related conference. In respect of whether the conduct was sufficiently work-related to justify termination of employment, the Full Bench of the AIRC held that it was. It noted that the employer had sponsored the applicant and the fellow employee to attend the conference, had contributed to the cost of the accommodation where the incident occurred as well as the cost of the dinner (and alcohol) that preceded the incident.[107]
In McManus v Scott-Charlton,[108] the applicant was disciplined with a pay reduction for failing to comply with his employer's direction to not privately contact a fellow employee outside the requirements of his official duties. This direction was a consequence of complaints by the fellow employee of off-duty sexual harassment by the applicant. Justice Finn held that the disciplinary action was appropriate, summing up the relevant principles as follows:
My conclusion is, then, that it is lawful for an employer to give an employee a direction to prevent the repetition of privately engaged in sexual harassment of a co-employee where:
(i) that harassment can reasonably be said to be a consequence of the relationship of the parties as co-employees (ie it is employment related); and
(ii) the harassment has had and continues to have substantial and adverse effects on workplace relations, workplace performance and/or the 'efficient equitable and proper conduct' ... of the employer's business because of the proximity of the harasser and the harassed person in the workplace.[109]
In the recent (and somewhat scandalous[110]
) case of Streeter v Telstra Corporation Limited,[111] the applicant was dismissed for drunken, lewd behaviour at a hotel room shared by a group of employees, following a work-related event. The hotel room had been arranged and paid for by the employees privately. The AIRC accepted that the applicant's conduct was sufficiently connected with her employment, on the basis that the employer might potentially have been held vicariously liable for the conduct under s 106(1) of the SDA.[112] However, the Commission ultimately held that the conduct was not of sufficient gravity to have warranted summary dismissal.[113]
To date, the interrelationship between employment law and vicarious liability for sexual harassment has yet to be fully developed or explained in the cases.
On one view, it could be said that the relevant factors are not sufficiently similar to warrant an equivalent nexus with employment in both employment law and sexual harassment law. For example, reputation damage is a relevant factor in considering whether off-duty misconduct might warrant dismissal, yet it has not been suggested that this might also warrant the imposition of vicarious liability. That is, an employee who engages in violent behaviour may, in some circumstances, sufficiently damage his or her employer's reputation so as to justify dismissal.[114] But it does not automatically follow that his or her behaviour should also be regarded as employment-related for the purposes of making the employer vicariously liable to the victims of that violent behaviour.
Furthermore, the interests of the parties are different in an employment law context compared with in a sexual harassment context. As the Alberta Court of Queen's Bench observed in Leach v Canadian Blood Services,[115] a case relating to unfair dismissal for off-duty sexual harassment:
This is not a case where I am determining whether CBS should be vicariously liable to the complainants for sexual harassment. ... In [such] cases the courts or tribunals are making the employer responsible for the employee's conduct so whether the conduct is in the workplace or is work-related, is often defined more restrictively. In contrast, in a 'just cause' case the employee suffers the consequence of his own behaviour, whether in the workplace or not, if it prejudicially affects his employment or is incompatible with the employee's duties.[116]
Notwithstanding the above, however, it is submitted that a consistent approach to the nexus requirement should generally be preferred. This is especially so in those jurisdictions where the nexus requirement turns on whether the off-duty conduct was 'in connection with the employment' given that connection with employment is also the critical factor in the employment law context.[117]
As the AIRC acknowledged in Streeter, if an employer might be found vicariously liable for sexual harassment on the basis that it occurred 'in connection with the employment', it would be odd to simultaneously find in the employment law context that the employer was prevented from dismissing or disciplining the employee for that conduct on the basis that the conduct was not sufficiently connected with the employment.[118]
Similarly, if it is accepted that the scope of an employer's control or supervision over off-duty behaviour extends to a particular point, it seems appropriate to expect the employer to take all reasonable steps within that scope to prevent sexual harassment between its employees. As the Canadian Supreme Court commented in Robichaud,[119] the very purpose of vicarious liability provisions in discrimination and sexual harassment legislation is to place 'responsibility for an organisation on those who control it and are in a position to take effective remedial action to remove undesirable conditions.'[120]
In addition, there has been an increased blurring of the relevant factors taken into consideration in employment law and sexual harassment law in assessing the nexus requirement. In particular, as noted earlier, each of the Australian federal decisions on vicarious liability for off-duty sexual harassment had regard to employment law jurisprudence, particularly by noting that the relevant sexual harassment had the capacity to adversely impact on the working environment.[121]
Furthermore, abuse of workplace seniority was a significant factor in the employment cases of Miller and McManus in respect of the off-duty sexual harassment being regarded as sufficiently connected with employment. For the reasons discussed below, this same factor might also be highly relevant in cases involving vicarious liability for off-duty sexual harassment.
Finally, a consistent approach would provide a degree of certainty for both employees and employers as to the scope of their respective rights and responsibilities. Speaking on the decision in Streeter, Peter Anderson, executive director of the Australian Chamber of Commerce and Industry, neatly summed up the quandary for employers as follows:
We have the unsatisfactory situation where employers can be caught in a position of double jeopardy where a decision to dismiss or discipline a worker will be attacked by an industrial relations tribunal for being an over-reaction. But a failure by the employer to discipline or dismiss a worker (for harassment) will be attacked by the equal opportunity tribunals as an inadequate response to an act of sexual harassment. It is the dilemma of inconsistent application of the law to the same set of facts that is our immediate concern.[122]
There is therefore much to be said for the view that, in cases involving off-duty sexual harassment between fellow employees, a consistent approach to the nexus requirement in both employment law and sexual harassment law is desirable. This helps to clarify that an employer should not be penalised in the employment law context for taking appropriate action to remedy or prevent conduct for which it might be held vicariously liable in the sexual harassment law context. Conversely, it imposes a conceptually parallel scope of obligation on the employer to take reasonable steps in preventing off-duty sexual harassment to the extent that it is permitted to do so in the employment law context. A harmonious approach in these two areas of law would therefore contribute to greater certainty as to the scope of employees' and employers' rights, obligations and scope of liability vis-à-vis off-duty conduct.
However, this is not to suggest that an employer should therefore be held vicariously liable for all conduct over which it might legitimately seek to dismiss or discipline an employee. For example, as noted earlier, damage to the employer's reputation might form an adequate basis for disciplining an employee but would not necessarily form an adequate basis for attaching vicarious liability.
Having established the requisite nexus with employment, the paths of employment law and sexual harassment law then diverge. In the former, regard must then be had to the proportionality of the employer's action in response to the gravity of the employee's conduct.[123] In the latter, regard must then be had to the reasonableness of the steps taken by the employer in seeking to prevent the off-duty sexual harassment from occurring. However, the two areas of law continue to be dynamic and interactive. That is, in considering what steps an employer ought reasonably to have taken, it is relevant to consider what steps were reasonably open to it in the employment law context, and vice versa.
In applying the nexus requirement of vicarious liability in the context of off-duty sexual harassment, a question that arises is whether it is preferable to follow the broad approach taken in the federal jurisdiction, or whether a narrower approach should be preferred.
One potential concern over adopting too broad an approach to the nexus requirement is that it places pressure on employers to restrict other rights of its employees in the name of protecting against vicarious liability. A number of creeping practices in United States (US) workplaces arguably illustrate this cause for concern.
The approach to vicarious liability for sexual harassment in the US is significantly different to Australia in a number of respects, making it problematic to draw sweeping comparisons. Nevertheless, it is noteworthy that, in a bid to provide additional protection against vicarious liability, increasing numbers of US employers have introduced 'non-fraternisation' policies that, to varying degrees, limit or outright prohibit romantic relationships between employees (particularly between superiors and subordinates).[124]
Cases challenging the enforcement of non-fraternisation policies have been brought under both employment law and/or invasion of privacy (which is not an actionable tort in Australia[125]). However, these challenges have typically failed, at least where the employer forewarned the employee about the non-fraternisation policy and applied the policy consistently.[126]
For example, in Watkins v United Parcel Services Inc,[127] the court upheld the dismissal of a manager for violating the company's non-fraternisation policy by having a romantic relationship with a subordinate employee. Similarly, in Sarsha v Sears, Roebuck & Co,[128] the applicant was dismissed for dating a subordinate. The Court held that the employer was 'entitled to enforce a no-dating policy ... against [its] supervisors, who by virtue of their managerial positions are expected to know better.'[129]
Indeed, following a detailed review of US cases relating to the enforcement of non-fraternisation policies, one US commentator concluded that such policies were typically upheld as taking precedence over competing privacy rights of employees:
The privacy rights of employees typically do not prohibit employers from acting as the dating police by implementing or enforcing a policy against romantic relationships in the workplace. In many, if not most instances, the employer's legitimate business interest in maintaining a peaceful and productive work environment and avoiding liability outweigh an employee's right to privacy.[130]
Alternatively, some employers have implemented policies requiring employees to formally report the initiation and conclusion of consensual relationships.[131] Some employers have taken the further step of also requiring romantically involved employees to sign 'consensual dating agreements' (or 'love contracts') under which the employees formally acknowledge that their relationship is consensual and does not violate the company's sexual harassment policy.[132] The legal effect (if any) of such agreements, however, has yet to be tested in the US courts.[133]
The expanding regulation by US employers of intra-office relationships and off-duty conduct has caused some commentators to raise concerns over other competing rights of employees. For example, one commentator remarked:
Society needs to scrutinize more closely the various policies that employers are voluntarily adopting to regulate their employees' intimate relationships. Society must also ensure that employees are not placed, unnecessarily, in a position in which they are required to choose between a significant intimate relationship and their job. The rules promulgated by many employers are often broader than what is needed to protect them from vicarious liability stemming from sexual harassment claims or to enhance productivity.[134]
Australian employers have yet to fully embrace such measures. However, there are some signs of change.[135]
On the one hand, imposing greater restrictions on supervisory staff in relation to their having romantic relationships with junior employees reduces the risk of sexual harassment arising from the power imbalance inherent in that relationship (discussed further below). Indeed, tighter controls over the off-duty conduct of staff may help to curb sexual harassment between co-employees even where no employment-related power imbalances are at play.
However, it must also be recognised that the workplace is a common source of romantic relationships and that not all such relationships involve abuse of power or sexual harassment. As people's busy lives continue to get busier, the reality is that many employees will continue to seek and find romantic partners in or through their employment.
Accordingly, in the march to eliminate workplace sexual harassment, an appropriate balance must be struck which recognises that not all workplace relationships are bad or likely to end in harassment. In adopting a broad approach to the nexus requirement, courts must therefore be alive to the fact that such an approach carries a risk of creating a pressure on employers to erode other employee rights along the way.
Notwithstanding the above concerns, it is submitted that the broad approach to the nexus requirement taken in the federal authorities discussed above should be preferred.
To the extent that courts might legitimately seek to discourage undesirable employment practices, this should not be achieved by seeking to narrow the scope of the nexus requirement. Rather, one method by which courts might better seek to discourage inappropriate policies would be via the application of the reasonable steps defence.
As noted earlier, the second limb of vicarious liability for sexual harassment comprises a 'reasonable steps' defence on the part of the employer. This defence acknowledges that it is not sufficient that particular harassment be connected with the employment for an employer to be held vicariously liable. Rather, an employer may avoid liability by establishing that it took (all) reasonable steps to prevent that conduct from occurring.
What will constitute 'reasonable steps' will naturally vary depending on the facts of the case. Courts have typically emphasised the need for employers to adopt and implement appropriate sexual harassment policies and grievance procedures.[136]
However, courts have also acknowledged that the reasonable steps defence does not establish a blanket standard required across all employers, but is variable; being moulded by such factors as the size of the employer.[137]
In applying the reasonable steps defence to particular facts, courts should be careful not to encourage or reward overly intrusive practices that unnecessarily infringe upon other employee rights. That is, in the assessment of what constitutes reasonable preventative steps, courts should avoid penalising employers for failing to have taken excessive steps. Likewise, courts should avoid rewarding employers who do take such steps.
In addition, the issue of undesirable workplace practices and policies can be evaluated and controlled in the employment law context in the consideration of whether steps taken by an employer to implement such policies can be justified. That is, courts might legitimately refuse to uphold punitive action taken by an employer in the implementation of a workplace policy that is excessive or unduly intrusive.
Once again, sexual harassment law and employment law should generally aim to be harmonious on such issues. For example, by discouraging over-zealous employment policies and practices as not being either reasonable or required in the assessment of the reasonable steps defence, this helps to clarify that employers who seek to implement such policies might be penalised in the employment law context, and vice versa. For the reasons outlined earlier, a consistent approach helps employees and employers to have a clearer idea of what policies are acceptable in relation to the off-duty conduct of employees.
Of course, knowing where to draw the line as to which policies and practices are 'overly intrusive' or 'over-zealous' goes to the nub of the problem. This article does not pretend that a magic line can be drawn in advance that will neatly apply to all cases. Each case will need to grapple with this line-drawing exercise on a case by case basis with close regard to the particular facts, the objects of the legislation and the broader implications for workplace practices. For the reasons that follow, this article submits that, in doing so, a broad approach to the nexus requirement should be preferred.
Perhaps the most important reason in favour of a broad approach to the nexus requirement in sexual harassment law is that it would better reflect the typical reality that workplace dynamics are not confined to the workplace. This is particularly so in cases involving off-duty sexual harassment by a comparatively more senior employee.
It has been widely acknowledged that work-related power imbalance is often a significant contributing factor in facilitating, and perhaps motivating, work-related sexual harassment. Indeed, the first Australian decision to recognise sexual harassment as being unlawful emphasised the significance of abuse of a position of power as a hallmark of sexual harassment.[138] The Canadian Supreme Court has also held that abuse of workplace power goes to the heart of what sexual harassment laws were designed to remedy. In Janzen v Platy Enterprises Ltd,[139] after surveying a variety of descriptions of sexual harassment, the Supreme Court concluded:
Common to all these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.[140]
The above passage is reminiscent of earlier feminist writing on the motivations underlying sexual harassment, typically being more an expression of dominance than sexual desire. For example, in her landmark book, Sexual Harassment of Working Women: A Case of Sex Discrimination, Catherine MacKinnon forcefully argued that:
Sexual assault as experienced during sexual harassment seems less an ordinary act of sexual desire directed towards the wrong person than an expression of dominance laced with impersonal contempt, the habit of getting what one wants, and the perception (usually accurate) that the situation can be safely exploited in this way — all expressed sexually. It is dominance eroticized.[141]
Mackinnon further described sexual harassment, in a passage cited by the Canadian Supreme Court in Janzen, as 'the unwanted imposition of sexual requirements in the context of a relationship of unequal power.'[142]
Whilst a relationship of unequal power may derive from the workplace hierarchy, the abuse of that power may manifest itself outside the workplace. It would surely be naive to suggest that the power imbalance between a junior and senior employee automatically dissolves at the door on leaving the workplace. Indeed, one could argue that a junior employee is in fact more vulnerable to sexual harassment from a senior fellow employee the further they are from the workplace. In such circumstances the imbalance of power remains omnipresent yet the coverage of sexual harassment legislation is less certain and the physical reminders of workplace accountability are no longer present.
In the above respect, it is worth recalling the significance of vulnerability in the context of sexual harassment. In Janzen, the Canadian Supreme Court approved the following passage from Professor Hickling:
One characteristic that victims [of sexual harassment] usually share in common is their vulnerability to economic sanctions both real and threatened.[143]
It should not be lightly assumed that such vulnerability stops at the door of the workplace or at the moment the working day ends. For example, in Simpson v Consumers Association of Canada,[144] the applicant was a senior employee whose employment was terminated for engaging in various acts of off-duty sexual harassment, such as nude bathing when he invited his subordinate employees to his country cottage to discuss work-related matters. The Ontario Court of Appeal upheld the termination of his employment, finding that:
Although these incidents did not take place within the physical confines of the office, they occurred in the context of the work environment.[145]
The Court noted in particular that the applicant's position of authority rendered his subordinate employees vulnerable to feeling compelled to tolerate his unwelcome conduct.[146]
Second, as was acknowledged by the courts in Trainor and Lee, a broad approach to the nexus requirement would best promote the beneficial and remedial objects of sexual harassment legislation.
It is well settled that, when construing legislation designed to protect human rights, the courts have a special responsibility to adopt a beneficial and purposive approach, to give such legislation 'the widest interpretation that its language will permit'.[147] Similarly, the courts have a special responsibility to take account of and give effect to the remedial purposes and objects of such legislation.[148]
Further, pursuant to federal, State and Territory legislation dealing with the interpretation of legislation, a construction of an Act that would promote the purposes or objects underlying the Act should be preferred.[149] This approach is not limited to circumstances where there is ambiguity or inconsistency in the Act.[150]
A central object of anti-sexual harassment legislation is promoting the enjoyment of employment free from sexual harassment. This is not to advocate an over-zealous and heavy-handed approach which places unrealistic pressures on employers. However, courts have an obligation to apply the legislation to achieve its intended result. The fact that such legislation inevitably requires employers to adopt and implement policies and procedures to take reasonable steps to prevent work-related sexual harassment would appear to reflect Parliament's plain intent.
Third, it should also be remembered that, in the modern working world, traditional notions of 'the workplace' are less static. Some employees are rarely off-duty at all, with one form of technology or another keeping them permanently on-line to the office. Others slip between home, work and leisure - traversing, overlapping and inter-changing the responsibilities of each to varying degrees on any given day (or hour of the day). Others find themselves in a 'work hard, play hard' workplace environment, where employees are encouraged — if not expected — to regularly socialise with their work team after hours, often with copious amounts of alcohol thrown in for good measure.
It has therefore become increasingly out-of-date to conceptualise the workplace as confined to the four walls of the office and the standard operating hours. As Ronald McCallum observed in Employer Controls over Private Life:
...it has become clear that for increasing numbers of employees, the sharp divide between working life and home life no longer exists.[151]
Accordingly, with the evolution of modern working conditions and technologies, the line between off-duty and on-duty has become increasingly blurred. This is not to suggest that the mere existence of common employment should be sufficient to satisfy the nexus requirement. Rather, it is to suggest that, depending on the circumstances, courts may need to take a broader view of how 'the workplace' should be conceptualised or defined in light of the evolution of working practices and technology.
Fourth, the development of new forms of technology and communication has not only changed the notion of what constitutions a workplace, but also the forms of sexual harassment being experienced by some employees.
Sexual harassment cases are increasingly involving new forms and uses of technology, such as harassment via text or picture messaging or internet chat rooms and social networking sites like Facebook and MySpace.[152]
For example, Chris Ronalds noted in a recent speech that concerns over work-related stalking cases had arisen from colleagues becoming aware of a person's social movements via entries on their Facebook page. She concluded:
...it is important to recognise that these changes [ie, Facebook and MySpace] mean that perhaps it's time we re-think the definition of sexual harassment within the legislative framework to ensure that it adequately and properly covers these sorts of technological changes and the creativity of men in devising new ways to harass women.[153]
Similarly, these new technological developments have further blurred the line between work and play, by creating a form of access between fellow employees (or between bosses and their subordinates) that often skates the delicate line between off-duty and on-duty contact. A broad approach to the nexus requirement is typically appropriate in such cases, to ensure that the law keeps pace with the emerging forms of sexual harassment being experienced by many employees.
Fifth, it is also important to note that courts have frequently considered sexual harassment by reference to its capacity to detrimentally affect the working environment. The Canadian Supreme Court in Janzen stated this explicitly, defining sexual harassment as:
...unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment.[154]
Likewise, as discussed earlier in Part Five, it has been widely accepted in the employment law context that off-duty sexual harassment may justify summary dismissal on the basis of its capacity to adversely affect the conditions of employment. For example, in McManus (an employment case),[155] Finn J stated:
There can, though, be circumstances — of which the private sexual harassment of a co-employee is an example — where conduct outside the workplace can occasion adverse workplace effects. The reason for this is that the continuing workplace proximity of the harasser and the person harassed can cause the impact of the harassment on the person harassed to endure into the workplace.[156]
The capacity to adversely impact on the workplace was also a factor relied upon in Leslie, Trainor and Lee to show that the harassment occurred 'in connection with the employment'. For example, in Trainor, after referring to the decision of the New Zealand Court of Appeal in Smith v The Christchurch Press Co Ltd,[157] Kiefel J stated:
The Court of Appeal [in Smith] held that the sexual harassment was 'in the course of employment' because it was between two present employees, arose out of the work situation and had the potential to adversely affect the working environment. The latter observation is of particular interest. It would seem logical to say that if it could be seen to have this effect, the necessary connection was present.[158]
It can therefore be seen that where off-duty sexual harassment has the clear potential to adversely impact on the applicant's working environment, a nexus with the employment will generally be found.
Finally, it is worth remembering that a broad approach to the nexus requirement would contribute to consistency with employment law jurisprudence, where a broad approach has generally been taken to the nexus requirement in cases involving off-duty sexual harassment. For the reasons already discussed, consistency between these two areas of law would be generally desirable in the interests of both employers and employees in clarifying the scope of their respective rights, obligations and liabilities.
On the question of vicarious liability for off-duty sexual harassment, the federal courts have taken a uniformly broad approach to the requisite nexus with employment. This issue is yet to have received much consideration in the jurisprudence of the States and Territories. The approach likely to be taken will no doubt turn on the particular facts. However, the applicable statutory test may also prove crucial. In this respect, the federal jurisdiction would appear to provide a more attractive avenue for applicants in the context of off-duty sexual harassment (at least in relation to the test for vicarious liability), for a number of reasons.
First, the statutory test in s 106(1) of the SDA is broader than that adopted in most State and Territory legislation. As the experience in the UK illustrates, the willingness of courts to make a finding of vicarious liability under a narrower statutory test (such as 'in the course of employment') has varied.
Second, there is a well-settled body of federal case law dealing with s 106(1) which confirms that the section is to be applied broadly, including with respect to off-duty sexual harassment. The federal jurisdiction therefore provides relatively well-tested waters for prospective applicants on this issue. Third, there are additional difficulties or hurdles for an applicant in several of the States and Territories in respect of vicarious liability.
However, notwithstanding narrower statutory language, the UK decisions in Stubbs and Livesey illustrate that it remains open to decision-makers in the relevant States and Territories to also take a broad approach when applying the nexus requirement of vicarious liability for off-duty sexual harassment. This broad approach should be preferred. Not only would it contribute to a consistent body of Australian jurisprudence, it would accord with well-settled principles of statutory construction about the need to apply remedial legislation in a manner that promotes the beneficial objects of such legislation. It would also reflect the increasingly blurred line between work, home and play, as well as the reality that off-duty sexual harassment between employees is rarely coincidental to their common employment.
Furthermore, a broad approach would contribute to consistency with the employment law jurisprudence, where courts have typically taken a broad approach to the circumstances in which an employer might dismiss or discipline an employee for off-duty misconduct. In this regard, a consistent approach to the nexus requirement in these areas of law is desirable in helping to clarify the scope of an employer's responsibility and authority over the off-duty lives of its employees.
Most of us in the working world are forever striving for an appropriate work-life balance. In assessing vicarious liability for off-duty sexual harassment, the courts must do likewise. Fortunately, the current trends in the Australian federal jurisdiction are providing positive signs that courts are getting the balance right.
[*] BA (Hons), LLB (Hons), LLM (Human Rights and Social Justice). Senior Lawyer, Australian Human Rights Commission. The views expressed are my own and not those of the Commission. Special thanks for the useful comments on an earlier draft from Jonathon Hunyor, Tristan Garcia, Dr Belinda Smith, Karen Toohey, Jodie Ball, Kara Ward and Elizabeth Broderick, as well as two anonymous referees.
[1] It is noted that the relevant vicarious liability provisions also relate to agents, as well as employees. I have chosen, however, to focus on the employer/employee relationship for the purposes of this article.
[1] [2007] FMCA 59; (2007) EOC 93–456 ('Lee').
[2] Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370. See generally, Rick Glofcheski, 'A Frolic in the Law of Tort: Expanding the Scope of Employers' Vicarious Liability' (2004) 12 Tort Law Review 18, 19–23.
[3] See, eg, Scott v Davis (2000) 204 CLR 333; John Salmond, The Law of Torts (1st ed, 1907) 83; R F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts (21st ed, 1996) 443.
[4] Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733–4 (Diplock LJ), discussed in NSW v Lepore [2003] HCA 4; (2003) 212 CLR 511, 535–6 [40]–[41] (Gleeson CJ), 614 [308] (Kirby J).
[5] [1987] 2 SCR 84 ('Robichaud').
[6] Ibid 92.
[7] [1997] 2 All ER 406 ('Tower Boot').
[8] Ibid 415 (Waite LJ, Potter LJ agreeing).
[9] Ibid.
[10] [2005] FCAFC 130; (2005) 144 FCR 402 ('Trainor').
[11] Ibid 414–5 [64]–[70].
[12] Ibid 410 [42].
[13] It has been held that sexual harassment is a 'species of unlawful sex discrimination', at least in the employment context: Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217, 277 (French J). See also at 235 (Lockhart J); Aldridge v Booth [1988] FCA 170; (1988) 80 ALR 1, 16–7 (Spender J); Elliott v Nanda [2001] FCA 418; (2001) 111 FCR 240, 281 [127] (Moore J); but compare Gilroy v Angelov [2000] FCA 1775; (2000) 181 ALR 57, 75 [102] (Wilcox J).
[14] See, eg, San v Dirluck Pty Ltd [2005] FMCA 750; (2005) 222 ALR 91; Font v Paspaley Pearls [2002] FMCA 142; (2002) EOC 93–232; Aleksovski v AAA Pty Ltd [2002] FMCA 81; (2002) EOC 93–219; Johanson v Blackledge [2001] FMCA 6; (2001) 163 FLR 58, 80 [97]–[98].
[15] [2002] FCA 32 ('Leslie'). It is noted, however, that earlier decisions had impliedly accepted that an office Christmas party was an extension of the workplace. See, eg, Dobrovsak v A R Jamieson Investments Pty Ltd [1995] HREOCA 32; Shellharbour Golf Club v Wheeler [1999] NSWSC 224; (1999) 46 NSWLR 253; Murphy v Colorific Lithographics Pty Ltd [1996] VADT 30. It had also been held that an employee could be personally liable for off-duty sexual harassment of a fellow employee, even if there was no other nexus with the employment: Q v John Defelice (2000) EOC 93–051, 74,131:
The respondent was a fellow employee of the complainant and consequently the complaint is within the terms of sec 28B [of the SDA]. That section does not require a nexus between the place or circumstances of employment and the sexual harassment of an employee by a fellow employee.
[16] SDA s 28B(2): 'It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.'
[17] [2002] FCA 32, [71]–[72].
[18] This was the interpretation of this passage taken by the Full Court in Trainor [2005] FCAFC 130; (2005) 144 FCR 402, 409 [36] (Black CJ and Tamberlin J, Kiefel J agreeing).
[19] [2002] FCA 32, [71].
[20] [2005] FCAFC 130; (2005) 144 FCR 402.
[21] Ibid 410 [41].
[22] Ibid 409 [40].
[23] Ibid 413–4 [62]–[64].
[24] Ibid 414–5 [65]–[70].
[25] Ibid 416 [74].
[26] Ibid. It is noted that her Honour's reference to the rooms being 'accessible' would appear to be a reference to the finding at first instance that the applicant was unable to lock her room. This had contributed to the harassment occurring because on each occasion Mr Anderson had let himself into the applicant's room uninvited. See Trainor v South Pacific Resort Hotels Pty Ltd [2004] FMCA 371, [36]–[38], [74].
[27] [2005] FCAFC 130; (2005) 144 FCR 402, 416 [74].
[28] Ibid.
[29] Ibid.
[30] [2007] FMCA 59; (2007) EOC 93–456.
[31] See, generally, Alex Newton, 'Beyond the Common Law: Employer held Responsible for Rape by Employee — Is this a new Frontier in Vicarious Liability?' (2007) 45(6) Law Society Journal 38.
[32] Lee [2007] FMCA 59; (2007) EOC 93–456, [198].
[33] Ibid [87]–[94].
[34] Ibid. Discussed at [13] and [70]–[71], with findings on this allegation made at [92]–[94].
[35] It is important to observe that the applicant's evidence regarding the relevant series of events was refuted by not only Mr Smith, but also Ms O'Shannessy and Mr Storey. However, Connolly FM rejected their evidence, making a number of scathing remarks about these witnesses along the way. For example, at [84]: 'Mr Storey was prepared to say whatever suited his purpose and ... was not too troubled by telling the truth.' See also at [85]: 'I found [Mr Smith] to be an unimpressive witness who was evasive in his answers to many questions and untruthful to some others'. See also [97], [103], [110]–[111], [140], [143] and [203].
[36] It is noted that his Honour did not make a clear finding as to whether the rape occurred at Mr Smith's residence, or at Ms O'Shannessy and Mr Storey's residence. However, it is submitted that the former appears to have been impliedly accepted by his Honour: see ibid [17]–[19] and [116]–[117].
[37] Ibid [206]
[38] Ibid [206].
[39] Ibid [203].
[40] Ibid.
[41] Ibid [199]: 'It may well have been the case, had the Applicant had the opportunity of attending such a course, she may well have been better equipped to deal with the earlier pornography in the workplace and by reporting those matters, it may have been that what occurred during and soon after the course could have been avoided and ultimately, the rape itself could have been avoided.'
[42] See also McAlister v SEQ Aboriginal Corporation [2002] FMCA 109; Cross v Hughes [2006] FMCA 976; (2006) 233 ALR 108; Frith v The Exchange Hotel [2005] FMCA 402. For a detailed survey of federal sexual harassment cases dealing with vicarious liability, see Patricia Easteal and Skye Saunders, 'Interpreting Vicarious Liability with a Broad Brush in Sexual Harassment Cases' [2008] AltLawJl 21; (2008) 33(2) Alternative Law Journal 75.
[43] [2008] VCAT 261 ('A v K Ltd').
[44] It is noted, however, that in Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143 one of the complaints of sexual harassment involved phone calls and text messages outside work hours. However, it is not clear from the decision whether this formed part of the relevant conduct held to constitute sexual harassment. In any event, there was also no direct consideration of whether there was a sufficient nexus with employment in respect of the after hours phone calls and text messages. In Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142, the applicant alleged (amongst other things) inappropriate conduct during a date with a fellow employee. However, this allegation was rejected on the basis that it was not unwelcome, with no discussion of vicarious liability (see [108]–[111]). In Brown v Richmond Golf Club [2006] NSWADT 104 one of the allegations of sexual harassment related to an attempted kiss at a private dinner party between two work colleagues. This allegation was rejected on the basis that the relevant kiss did not reach the threshold of sexual harassment. There was no discussion of whether the employer would have held been vicariously liable for this aspect of the alleged harassment: see [17]–[31].
[45] Equal Opportunity Act 1984 (WA) s 161(1); Anti-Discrimination Act (NT) s 105(1).
[46] Anti-Discrimination Act 1991 (Qld) s 133(1); Equal Opportunity Act 1995 (Vic) s 102; Equal Opportunity Act 1984 (SA) s 91(1).
[47] [2005] FCAFC 130; (2005) 144 FCR 402, 410 [42].
[49] Ibid [135]: 'I accept the words "in connection with" should be given a more expansive meaning than that given to words such as "in the course of" or "in the scope of".'
[50] [2005] FCAFC 130; (2005) 144 FCR 402, 414 [67].
[52] Ibid [40].
[53] Ibid.
[54] Ibid [42].
[55] Ibid [41] (emphasis added).
[56] Ibid [45]. The court did not address the legal issues in any great detail in relation to the second incident.
[57] At the time of writing, the substantive proceeding in relation to the second incident had not yet been heard.
[58] [1999] NSWSC 224; (1999) 46 NSWLR 253 ('Shellharbour').
[59] Ibid 259 [33] (emphasis in bold added).
[60] This might be compared with the absence of vicarious liability provisions in the Racial Discrimination Act 1975 (Cth) prior to 1990. In Surti v State of Queensland [1993] HREOCA 3, Commissioner Bryce observed: 'Also, at the time of the alleged discriminator conduct, the Act did not contain any provision for vicarious liability. An examination of the parliamentary debates at the time of the enactment of the Act in 1975 shows that this omission was a purposeful one by the Parliament. Accordingly, the complainant must show that the respondent was directly responsible for the alleged discriminatory conduct.'
[61] See Marshall v Discrimination Commissioner [1996] ACTAAT 147, [71]; Goold v Goudie [1999] ACTDT 3. It is also noted that the Discrimination Act separately prohibits sexual harassment between fellow employees: s 59(6).
[62] (1988) EOC 92–229.
[63] Ibid 77,173. This approach was adopted by the NSW Administrative Tribunal in Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [113] and [158]. For an example of cases dealing with direct liability under the Racial Discrimination Act 1975 (Cth) prior to the insertion of vicarious liability provisions, see, eg, Kordos v Plumrose (Australia) Limited (1989) EOC 92–256, 77,512–4; Surti v The State of Queensland [1993] HREOCA 3. Note, however, that the RDA included a specific provision making an employer directly liable for conduct of its employees in particular circumstances.
[64] See, generally, Glovchevski, above n 3.
[65] As noted by Allsop J in Thomson v Orica Australia Pty Ltd [2002] FCA 939, [141]: '...there is ample authority for the implication of a term in a contract of employment that the employer will not, without reasonable cause, conduct itself in a manner likely to damage or destroy the relationship of confidence and trust between the parties as employer and employee.' It has been held, for example, that resignation as a result of sexual harassment may constitute a constructive dismissal of an employment contract on the basis that the employer's conduct amounted to serious breach of the contract. See, eg, Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [114]–[115]; Taylor v Sciberras [2004] NSWADT 104, [151]; Gliddon v Woodley (2001) EOC 93–114.
[66] Anti-Discrimination Act 1977 (NSW) s 53(3).
[67] Anti-Discrimination Act 1977 (NSW) s 53(1). For examples of how s 53(1) has been applied in practice, see Caton v Richmond Club Limited [2003] NSWADT 202, [143]; Asnicar v Mondo Consulting Pty Ltd [2004] NSWADT 143, [94]–[98]; Brown v Richmond Golf Club [2006] NSWADT 104, [64]–[66]; Shellharbour [1999] NSWSC 224; (1999) 46 NSWLR 253, 265.
[68] [1999] NSWSC 224; (1999) 46 NSWLR 253, 265 [68], approving a passage of the decision at first instance: 'However in our view these cases [considering s 106 of the SDA] are of limited assistance because s 53(1) of the New South Wales Act provides the club with a defence if it can establish it did not authorise the second respondent to engage in the conduct in question. It, therefore, appears to be a less difficult defence to establish than s 106(2) of the Commonwealth Act.' See also at 265 [69].
[69] McKibbin v State of SA (Office of the Public Trustee) [2004] SAEOT 1, [42]: 'In effect, a right to damages and vicarious liability depend upon the alleged victim establishing that the person who has failed to prevent sexual harassment or the employer "...instructed, authorised or connived..." at the sexual harassment.' See further at [54]. It is noted, however, that a wide meaning of 'authorised' was applied in that case.
[70] SDA s 106(2).
[71] Anti-Discrimination Act 1977 (NSW) s 53(3); Equal Opportunity Act 1984 (WA) s 161(2); Anti-Discrimination Act (NT) s 105(2). Similarly, s 91(4) of the Equal Opportunity Act 1984 (SA) uses the language 'all reasonable diligence'.
[72] Anti-Discrimination Act 1991 (Qld) s 133(2); Anti-Discrimination Act 1998 (Tas) s 104(2).
[73] Equal Opportunity Act 1995 (Vic) s 103.
[74] However, the operation of the 'reasonable steps' defence in Tasmania is not clear. Section 104(1)(c) imposes an obligation on employers to 'ensure' that its employees do not engage in 'such conduct', yet it is not clear whether the expression 'such conduct' is referable to preceding sub-paragraph (a) or (b) — ie, 'conduct to which this Act relates' or conduct of a kind to which an order under s 82 relates. If (a), it could be argued that an employer may be held vicariously liable even if it has taken 'reasonable steps', on the basis that it has not 'ensured' that its employees have not engaged in prohibited conduct which is suggestive of a stricter test. The imposition of vicarious liability under s 104(2) is contingent upon failure to comply with the section as a whole, not simply a failure to take reasonable steps. As far as I am aware, however, this issue has not yet been considered by the courts and tribunals in Tasmania.
[76] Ibid [98] (emphasis in bold added).
[77] Lee [2007] FMCA 59; (2007) EOC 93–456, [209] (emphasis added). See also Bachleda v Associated Steamships Pty Ltd t/a ASP Ship Management and Piesik [1997] HREOCA 48: 'The test to avoid vicarious liability since December 1990 is quite strict since one has to take all reasonable steps.' Compare, however, with the arguably less stringent approach taken by Rimmer FM in McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [147]: 'Whilst I accept that [the respondent] could have perhaps done more, that is not the test set out in s 106(2), it is simply that the employer must take all reasonable steps to prevent the harassment complained of from occurring. They do not have to take every step possible to ensure that it does not occur.'
[79] Ibid [175].
[80] For a useful comparative summary of different features, coverage and exceptions under each of the State, Territory and federal discrimination laws, see Chris Ronalds and Rachel Pepper, Discrimination Law and Practice (2nd ed, 2004), Appendices A–D.
[81] Sex Discrimination Act 1975 (UK) s 41. See also Race Relations Act 1976 (UK) s 32(1), for vicarious liability for race discrimination.
[82] [1999] ICR 547 ('Stubbs').
[83] Ibid 559, quoting paragraph 36 of the decision at first instance.
[84] Ibid, quoting paragraph 44 of the decision at first instance.
[85] Ibid 560, quoting paragraph 99 of the decision at first instance.
[86] Ibid 558 (Morison J).
[87] Ibid.
[88] Ibid.
[89] [2005] FCAFC 130; (2005) 144 FCR 402, 416 [73] (Kiefel J).
[90] [2007] FMCA 59; (2007) EOC 93–456, [204] (Connolly FM).
[91] (Unreported, Employment Appeal Tribunal, Ansell J, Ms Branney and Prof Wickens, 13 January 2004) ('Livesey').
[92] Ibid, esp at [15] and [20]–[21].
[93] [1997] ICR 1073 ('Waters').
[94] Ibid 1095–6 (Waite LJ, Evans and Swinton Thomas LJJ agreeing).
[95] [2000] EWCA Civ 183; [2001] ICR 167 ('Sidhu').
[96] Ibid 171 [11], quoting paragraph 16 of the decision at first instance.
[97] Ibid 176 [28].
[98] [2000] EWCA Civ 183; [2001] ICR 167, 28 (Gibson LJ, Brooke and Robert Walker LJJ agreeing).
[99] Mary-Jane Ierodiaconou, 'After-Hours Conduct' (2004) 78(4) Law Institute Journal 42, 44.
[100] (Unreported, Australian Industrial Relations Commission, Ross VP, 4 December 1998, Print Q9292) ('Rose').
[101] [2002] AIRC 1318 (PR924103) ('Graincorp').
[102] Ibid [39].
[103] (Unreported, Australian Industrial Relations Commission, Ross VP, 4 December 1998, Print Q9292).
[104] For cases taking an arguably narrower approach to the nexus requirement, see, eg, Applicant v Respondent (unreported, AIRC, Deputy President Blake, Print P9973, 20 May 1998) (unreported, AIRC Full Bench, Senior Deputy President MacBean, Deputy President Duncan, Commissioner Deegan, Print R1221, 1 February 1999); Tichy v Department of Justice [2005] AIRC 136 (PR955783); Tichy v Department of Justice [2005] AIRC 592 (Full Bench) (PR959660).
[105] [2007] NSWIRComm 33 ('Miller').
[106] Ibid, see esp at [70], [80], [87], [100], [106]. Surprisingly, however, the Commission ultimately held that the termination was harsh because it was disproportionate to the gravity of the sexual harassment involved: [122]–[123].
[107] [2002] AIRC 1318 (PR924103), [39].
[108] [1996] FCA 1820; (1996) 70 FCR 16 ('McManus').
[109] Ibid 29. His Honour also added at 29: 'This may be formulated somewhat more narrowly than is necessary, but it is sufficient for present purposes.' See also Smith v The Christchurch Press Co Ltd [2000] NZCA 341; [2001] 1 NZLR 407; Farquharson v Qantas Airways Limited [2005] AIRC 982 (PR965161).
[110] The Streeter decision generated considerable media attention for its salacious facts. See, eg, Ewin Hannan, 'After Hours', The Australian, 20 August 2007, available at <http://www.theaustralian.news.com.au/story/0,25197,22271789-28737,00.html> at 15 October 2008: 'SINNER or sinned against? Carlie Streeter's successful challenge to being sacked by Telstra over an after-hours sex romp has attracted heavy traffic to online forums, with readers intrigued by the tale of sex, baths and booze.' See also Ewin Hannan, 'Woman back in job after sex romp', The Australian, 13 August 2007, available at <http://www.theaustralian.news.com.au/story/0,25197,22234527-5006784,00.html
> at 15 October 2008.
[111] [2007] AIRC 679 (PR977958) ('Streeter').
[112] Ibid [118]–[121], [146].
[113] Ibid [147]–[150]. This finding was overturned on appeal, on the basis that Ms Streeter's level of dishonesty during Telstra's internal investigation of the matter destroyed the relationship of trust and confidence between Telstra and Ms Streeter: Telstra Corporation Limited v Streeter [2008] AIRCFB 15 (PR980356), [23]. The Full Bench did not, however, disturb the finding at first instance that the events in the hotel room were work-related.
[114] See, eg, Farquharson v Qantas Airways Limited [2005] AIRC 982 (PR965161). Cf Rose v Telstra (Unreported, Australian Industrial Relations Commission, Ross VP, 4 December 1998, Print Q9292).
[115] (2001) 284 AR 1 (Alberta Court of Queens Bench).
[116] Ibid 51-2.
[117] See, eg, McManus [1996] FCA 1820; (1996) 70 FCR 16.
[118] Streeter [2007] AIRC 679, [118].
[120] Ibid 95.
[121] See, esp, Trainor [2005] FCA 7; (2005) 144 FCR 302, 416 (Kiefel J); Lee [2007] FMCA 59; (2007) EOC 93–456, [203]; Leslie [2002] FCA 32, [71] (applying the New Zealand employment law case of Smith v The Christchurch Press Co Ltd [2000] NZCA 341; [2001] 1 NZLR 407).
[122] Quoted in Ewin Hannan, 'After Hours', The Australian, 20 August 2007, available at <http://www.theaustralian.news.com.au/story/0,25197,22271789-28737,00.html> at 15 October 2008.
[123] See, eg, Streeter [2007] AIRC 679 (PR977958), [149]: '[T]he less direct the relationship with the workplace the more serious the misconduct would need to be to justify termination of employment.'
[124] See, generally, Sharon Rabin-Margalioth, 'Love at Work' (2006) 13 Duke Journal of Gender Law and Policy 237, 247: 'Under the guise of protecting their employees from sexual harassment, employers are continuously expanding their sexual harassment policies to incorporate non-fraternization clauses or other informal means of restricting and regulating intra-organizational intimate interaction.' See also Rebecca J Wilson, Christine Filosa and Alex Fennel, 'Romantic Relationships at Work: Does Privacy Trump the Dating Police?' (2003) 70 Defense Counsel Journal 78, 79: 'Many employers adopt anti-fraternization policies in an effort to avoid the numerous types of liability they might otherwise confront.'
[125] Australian Broadcasting Corporation v Lenah Game Meats Pty Limited (2001) 208 CLR 199. See, generally, Des Butler, 'A Tort of Invasion of Privacy in Australia?' [2005] MelbULawRw 11; (2005) 29 Melbourne University Law Review 339.
[126] See, generally, Wilson et al, above n 125, 82–6; Rabin-Margalioth, above n 125, 248.
[127] 797 F Supp 1349 (S D Miss, 1992).
[128] [1993] USCA7 1154; 3 F 3d 1035 (7th Cir, 1993).
[129] Ibid 1037. See also New York v Wal-Mart Stores, 621 NYS 2d 158 (App Div 3d Dept, 1995).
[130] Wilson et al, above n 125, 87.
[131] See Rabin-Margalioth, above n 125, 249.
[132] Ibid 249. For a detailed discussion of the legal basis and potential effect of such contracts, see Jessica Lynn Mok O'Neil, 'If You Love Me Dear, Please Sign Here: Will the "Love Contract" Play a Role in Protecting Employers from Sexual Harassment Liability?' (2006) 40 John Marshall Law Review 311.
[133] O'Neil, above n 133, 321–2.
[134] S Rabin-Margalioth, above n 125, 252.
[135] See Myles Wearring, 'Flirt your way to the Top', 26 September 2007, available at: <http://www.news.com.au/business/story/0,23636,22472607-5012424,00.html> at 15 October 2008:
In a bid to reduce sexual harassment claims, some companies - including a number of multinational restaurant chains - have imposed non-fraternisation policies, banning flirting and inter-office relationships.
[136] See, eg, Aleksovski v AAA Pty Ltd [2002] FMCA 81, [88]: 'It is generally accepted that "all reasonable steps" in connection with sexual harassment in the workplace means that the employer is required to have a policy in relation to sexual harassment which should be clear and placed in written form and communicated to all members of the workforce. But in addition to that it is generally considered that continuing education on sexual harassment should be undertaken.' For a guide to appropriate steps for employers to take in preventing sexual harassment, see Human Rights and Equal Opportunity Commission, Sexual Harassment in the Workplace: A Code of Practice for Employers (2004), available at: <http://www.humanrights.gov.au/sex_discrimination/workplace/code_practice/index.html> at 15 October 2008.
[137] See, eg, Cooke v Plauen Holdings [2001] FMCA 91, [37]: 'Care needs to be taken when considering the meaning of the expression "taking reasonable steps to prevent the sexual harassment occurring". The SDA does not distinguish between large and small employers, in terms of the availability of a defence under s 106 (2): Gilroy v Angelov [2000] FCA 1775, [100]. As was apparent in that case, however, it would be unrealistic to expect all employers, regardless of size, to adhere to a common standard of preventative measures. This defence has been interpreted in Australia as requiring the employer to take some steps, the precise nature of which will be different according to the circumstances of the employer. Thus, large corporations will be expected to do more than small businesses in order to be held to have acted reasonably. I note, however, that the reasonableness factor applies to the nature of the steps actually taken and not to determining whether it was reasonable not to have taken steps in the first place.' See also McAlister v SEQ Aboriginal Corporation [2002] FMCA 109, [143].
[138] O'Callaghan v Loder [1984] EOC 92–023, 75,506. See generally Gail Mason and Anna Chapman, 'Defining Sexual Harassment: A History of the Commonwealth Legislation and its Critiques' [2003] FedLawRw 6; (2003) 31 Federal Law Review 195, 201–6.
[139] [1989] 1 SCR 1252 ('Janzen').
[140] Ibid [49].
[141] Catharine MacKinnon, Sexual Harassment of Working Women: A Case of Sex Discrimination (1979) 162. See also Arjun Aggarwal, Sexual Harassment in the Workplace (1987) 1: 'Sexual harassment may be an expression of power or desire or both. Whether it is from supervisors, co-workers or customers, sexual harassment is an attempt to assert power over another person.' Quoted in Janzen [1989] 1 SCR 1252, 1280.
[142] MacKinnon, above n 142, 1, cited in Janzen [1989] 1 SCR 1252, 1280.
[143] Janzen [1989] 1 SCR 1252, 1285, citing M A Hickling, 'Employer's Liability for Sexual Harassment' (1988) 17 Manitoba Law Journal 124, 127.
[145] Ibid 370. And further (at 371):
It would be artificial and contrary to the purpose of controlling sexual harassment in the workplace to say that after-work interaction between a supervisor and other employees cannot constitute the workplace for the purpose of the application of the law regarding employment-related sexual harassment.
See also Leach v Canadian Blood Services (2001) 284 AR 1, 49-56.
[146] Ibid 371-2:
Because of the power imbalance in an employee's relationship with a supervisor, and the perceived consequences to objecting to a supervisor's behaviour, ... an employee may go along with conduct. In those circumstances, the employee will be effectively consenting to unwelcome conduct because she feels constrained from objecting.
[147] Bridge Shipping Pty Ltd v Grand Shipping SA [1991] HCA 45; (1991) 173 CLR 231, 260–1 (McHugh J). See also Qantas Airways Limited v Christie (1998) 193 CLR 280, 332 (Kirby J); Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 20 applying Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404, 423; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Newcastle City Council v GIO General Ltd [1997] HCA 53; (1997) 191 CLR 85, 112–13; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381, 384.
[148] Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, 359 (Mason CJ and Gaudron J); IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1, 14 (Brennan CJ and McHugh J), 22–3 (Dawson and Gaudron JJ), 27 (Toohey J), 39 (Gummow J), 58 (Kirby J); X v Commonwealth (1999) 200 CLR 177, 223 (Kirby J); Qantas Airways Limited v Christie (1998) 193 CLR 280, 332 (Kirby J).
[149] Legislation Act 2001 (ACT) s 139; Acts Interpretation Act 1901 (Cth) s 15AA; Interpretation Act 1987 (NSW) s 33; Interpretation Act (NT) s 62A; Acts Interpretation Act 1954 (Qld) s 14A; Acts Interpretation Act 1931 (Tas) s 8A; Interpretation of Legislation Act 1984 (Vic) s 35(a); Interpretation Act 1984 (WA) s 18.
[150] Mills v Meeking [1990] HCA 6; (1990) 91 ALR 16, 30–1 (Dawson J).
[151] Ronald McCallum, Employer Controls over Private Life (2000) 5–6.
[152] See, eg, Laura Anderson, 'Sex and the office', The Advertiser, 27 February 2008, p 19; AAP, 'Women warned: cyber groping on the rise', Sydney Morning Herald, 29 March 2006, available at: <http://www.smh.com.au/news/technology/women-warned-cyber-groping-on-the-rise/2006/03/28/1143441148690.html> at 15 October 2008; Dianne McKean, 'Net harassment tolerated', The Australian, 7 June 2006, available at:
<http://www.australianit.news.com.au/story/0,24897,19385558-15318,00.html> at 15 October 2008.
[153] Chris Ronalds, 'Sexual Harassment — Don't Cop It' (Speech delivered at the Queensland Police Service Conference, Brisbane, 18 October 2007) 34.
[154] Janzen [1989] 1 SCR 1252, 1253 (emphasis added).
[155] [1996] FCA 1820; (1996) 70 FCR 16.
[156] Ibid 28–9.
[157] [2000] NZCA 341; [2001] NZLR 407.
[158] [2005] FCAFC 130; (2005) 144 FCR 402, 416 [73] (emphasis added).
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