Liability refers to who is held legally responsible for behaviour that is against the law, such as discrimination or sexual harassment. While a person who sexually harasses, victimises or discriminates against someone else is primarily responsible for their own behaviour, in some cases, employers can also be held responsible.
What is liability?
There are two types of liability:
- Individual liability: when an individual who discriminates against, sexually harasses or victimises another person is found to be legally responsible for their own behaviour.
- Vicarious liability: when an employer is found to be legally responsible for acts of discrimination, sexual harassment or victimisation of an employee.
For an employer to be found legally responsible, the act/s must have happened:
- in the workplace, or
- in connection with a person’s employment.
Examples of vicarious liability
- Alex is a new employee. Her manager has asked her out a number of times and likes to stand close behind her chair. She’d like to complain but has no idea how to go about it. She could make a complaint against her manager and the company.
- Alison works in a café and was sexually harassed. When she complains to the Commission, her manager says that they’re only a small organisation of ten staff, so they don’t have a policy about acceptable behaviour. She could make a complaint against the person who harassed her and the employer.
- Li-Huei is a consultant in a large team and has experienced discrimination. She’s aware there may be a workplace behaviour policy and training may have happened a long time back, but no-one knows where to find the policy or what to do if they have concerns. She could make a complaint against the person who discriminated against her and the organisation.
Exception to vicarious liability
An employer may not be found vicariously liable if they can show that they have:
- taken all reasonable steps to prevent discrimination, sexual harassment and victimisation from occurring
- responded appropriately to resolve incidents
Complying with the positive duty to eliminate discrimination, sexual harassment and victimisation as far as possible means employers may be less likely to be found vicariously liable for unlawful behaviour in their workplace.
What is the positive duty?
Victoria is unique in having a positive duty, which creates an opportunity to prevent unlawful behaviour. It helps organisations put a healthy workplace culture in place, just as occupational health and safety laws require employers to take appropriate steps to ensure injuries don’t occur.
To ensure they are complying with the positive duty, organisations should also put measures in place to ensure that complaints are responded to swiftly and appropriately when they do arise.
The positive duty applies to employers of all sizes, regardless of whether they are a major company or a small cafe, and covers all types of workers:
- full-time, part-time and casual employees
- agents and contract workers
- trainees and apprentices.
It applies to all stages of employment, including: