Leaders & Liability: Secondary and vicarious liability related to unlawful workplace behaviours.

In today’s complex and regulated work environment, leaders, board members and anyone in a position of authority are responsible for ensuring their organisations comply with current workplace behaviour laws and guidelines.

Unlawful workplace behaviours such as sexual harassment, discrimination, and bullying not only affect employees, but also place leaders at risk of secondary liability, and employers of vicarious liability.

Secondary Liability: A leader’s accountability

Secondary liability arises when anyone in a position of authority aids, assists, allows, permits or authorises a person to do something unlawful, then they are treated as if they did that behaviour themself.

This form of liability holds anyone in a position of authority accountable even if they did not directly commit the unlawful act but did not address it. Some scenarios where secondary liability may arise include:

  • A manager sees an argument between two staff and doesn’t do anything about it because they feel, “that’s just what those two are like!”.
  • An employee reports an incident where they saw one person make a sexual gesture to another person during a meeting. The manager ignores it as people just having a bit of fun.
  • An employee makes a sexual joke in the staff kitchen and their supervisor is present and laughs.

Vicarious Liability: The organisation’s responsibility

Vicarious liability holds organisations and their directors and officers accountable for the actions of their employees, provided these actions occur within the scope of employment. This means that even if the leadership did not directly engage in the unlawful behaviour, they could still be liable if it is determined that they did not take all reasonable steps to prevent such behaviour.

For example, if an employee harasses a colleague during work hours and the organisation had insufficient preventative measures in place, then they are at risk of vicarious liability.

Mitigating Risks: Strategies for leaders and boards

A proactive approach is essential to mitigate the risk of secondary and vicarious liability. Here are some practical strategies:

  • Develop and enforce policies: Establish clear, comprehensive policies against sexual harassment, discrimination, and bullying. Ensure these policies comply with current laws and are communicated effectively to all employees.
  • Training and education: Provide regular training to managers and employees on workplace laws, acceptable behaviour, and reporting mechanisms.
  • Effective reporting mechanisms: Implement confidential and accessible systems for employees to report unlawful behaviour without fear of retaliation.
  • Prompt and fair investigations: Ensure that all complaints are investigated promptly and fairly, with appropriate actions taken.
  • Regular audits and reviews: Conduct regular reviews of workplace practices and policies to ensure ongoing compliance and address any gaps.
  • Promote a positive culture: Foster a workplace culture of respect and inclusivity from the top down. Leaders must model the behaviour they expect from their employees.

It is important to note that the Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022 (Cth) amended the Sex Discrimination Act 1984 (Cth). It introduced a positive duty on employers to eliminate workplace sexual harassment, sex discrimination, sex-based harassment, hostile workplace environment and victimisation. New regulatory powers have been conferred on the Australian Human Rights Commission to audit and enforce compliance with the positive duty – even if no complaints have been received.

In this context, it is essential for leaders and board members to understand and take proactive steps to avoid secondary and vicarious liability related to unlawful workplace behaviours. This will not only help protect employees but also prevent substantial legal, financial, and reputational repercussions.

In a world where workplace conduct is increasingly scrutinised, effective leadership is more crucial than ever in ensuring compliance and fostering a positive, inclusive workplace environment for all.

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The author, Franca Sala Tenna, is an acknowledged workplace behaviour and compliance expert. She is also the Founder & Director of EEO Specialists, and Online Compliance Training Australia.

Useful links for further reading and information:

Fair Work Ombudsman

Safe Work Australia

Australian Human Rights Commission

https://www.equalopportunitytraining.com.au/