 Behaving
Badly … after work or outside the workplace.
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Small businesses have the same duty of care as
their larger corporate counterparts to provide a workplace free from
intimidation and harassment and recent cases highlight that an employer may be
vicariously liable for the behaviour of workers both inside and outside
the workplace.
The NSW Court of Appeal recently ordered an employer pay to an employee
$861,197 in damages. The employee
was injured by a co-worker after work, following an altercation in the
workplace earlier that day. The employer was aware of the co-worker’s propensity
for violence as he had been involved in other workplace altercations. The Court
found that the employer failed to take any disciplinary action against the
co-worker and, by failing to act; the employer had breached its duty of care to
the injured employee.
In
separate cases, female employees have been awarded damages of more than $100,000
because the Courts found that they had been sexually harassed during the course
of their employment, even though the harassment occurred outside the
workplace.
In
the first instance a female employee was harassed at a work organized trivia
night. Even though the incident occurred off the employer’s premises at a
Licensed Club and considerable amounts of alcohol had been consumed, it was
found that the female employee had been threatened with both physical and sexual
assault. The
Court determined that misconduct had occurred during a workplace event as the
sole reason why the employee was at the Club was because the Trivia Night had
been arranged by the employer.
In
similar circumstances, an employer was found to be vicariously liable after a
female employee was sexually assaulted by a co-worker following a work organized
event. It was found that the female employee was actively encouraged to
socialise with colleagues, the co-worker had repeatedly harassed the female
employee at the workplace, and the sexual assault was a culmination of that
harassment. The workplace harassment included pornographic messages and displays
of pornography. The female employee was awarded damages of $100,000 for hurt,
suffering and humiliation. Her claim for compensation, medical expenses,
economic loss and legal costs is likely to exceed $400,000.
Craig
McFadden, Managing Director of Savvy Human Resources said "Small
business owners can take simple steps to protect their employees, however
developing a policy and communicating it to employees is just a starting point".
"Convincing people to modify their behaviour need not be onerous; appointing
contact officers and constant reinforcement through training, will better
position employers to minimize their liability and shift the liability for poor
behaviour to those individuals that engage in it " says McFadden.
This publication is provided by way of
general guidance only and is not to be
construed by the reader as legal advice or
as a recommendation to take a particular
course of action in the conduct of their
business or personal affairs. You should not
rely upon the material as a basis for action
that may expose you to a legal liability,
injury, loss or damage and it is recommended
that you obtain your own legal advice
relevant to your particular circumstances.
Savvy Human Resources Associates Pty Ltd and
their agents Disclaims All Liability For Any
Loss Or Injury Suffered, Howsoever Caused,
As A Result of Relying Upon The Content Of
This Publication In The Making Of Any
Commercial Or Personal Legal Decisions.
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