Companies in Australia often view anti-discrimination laws as being primarily applicable to their workers, officers and agents, but not to the company itself. This is not always the case though, as recent decisions by the courts have shown that a company may be held to be ‘vicariously liable ‘for the actions of its workers if it cannot show that it took all reasonable steps to prevent the discriminatory conduct occurring.
The common method that companies tend to use to satisfy these criteria of law includes the preparation and distribution of a number of workplace policies and procedures on the following areas:
- Prohibited conduct/appropriate workplace behaviour;
- Due diligence/company code of conduct;
- Fair treatment/anti-discrimination procedure.
It is of paramount importance that companies spend time, due care and skill in tailoring their policies and procedures so that they are thorough and effective in explaining what prohibited conduct is to workers. These policies must also explain how to report it using the company’s internal mechanisms.
Companies find themselves in strife if they don’t properly prepare these policies properly but instead use “catch-all’ broad workplace policies.
The relatively recent decision of Richardson v Oracle Corporation Australia was one such case, which involved findings by the court of sexual harassment against a worker. The respondent company in this case attempted to avoid liability by relying upon workplace anti-discrimination procedures and the training provided to relevant workers about sexual harassment not being tolerated.
The court in this case held that the relevant policy and procedures of the company had not been tailored to properly satisfy anti-discrimination standards, so it did not accept the respondent company’s argument that it should not be held partially responsible for the discriminatory conduct that took place by one of its workers against another.
The key lesson from cases such as this is focused on:
- the content in the relevant workplace policies, including the internal reporting mechanism or procedure of how workers and relevant stakeholders are able to report discriminatory conduct;
- and in turn, how the company deals with such claims and allegations, including applying responsive and proportionate disciplinary actions to prevent or correct such allegations and behaviour.
MKI Legal has experience advising on the content of such workplace policies and procedures, and thoroughly recommends that all companies consider implementing these procedures into their workplaces, and taking the time and investing the resources to properly investigate and carry out relevant procedures as per the requirements of the workplace policy.