Bill-Fitzgerald

Bill Fitzgerald

A recent case involving the sexual assault of a female hotel worker by the site’s night caretaker has highlighted important safety considerations for employers providing on-site accommodation for their employees. Bill FitzGerald, AMMA’s principal consultant based in Hobart, writes.

IN STU v JKL (Qld) Pty Ltd and Ors [2017] QCAT 505 (6 December 2016), the Queensland Civil and Administrative Tribunal (QCAT) ruled that a proven sexual assault by one employee on another in employer-provided accommodation constituted sexual harassment under s119 of the Queensland Anti-Discrimination Act.

The matter related to a female hotel worker who awoke in her hotel room, provided by her employer, to find the hotel’s night caretaker naked in her room and making unsolicited advances.

The case was lengthy and involved a great deal of argument as to whether the employer was vicariously liable for the assault. For instance, the employer argued that while the night caretaker was ‘on call’, he hadn’t been called to, or was attending duties at the time the assault took place.

Ultimately, the tribunal rejected the defence that the assault did not occur in the course of employment.

QCAT member Ann Fitzpatrick concluded that the assault occurred in accommodation provided for the officer and arranged by the hotel.

She found the caretaker’s contravening conduct occurred in the course of his work within the meaning of s133 (1) of the Anti-Discrimination Act and that the hotel was vicariously liable for the contravention.

QCAT further ruled that the 2010 assault constituted sexual harassment under s119 of the State Anti-Discrimination Act. It also rejected the hotel’s claims that it was unable to prevent the assault.

“I do not accept there were no reasonable steps (the employer) could have taken,” Ms Fitzpatrick said.

“At the very least one would expect a publicly listed company, such as the [hotel], to have an anti-discrimination policy and an education program for its workers.

“If the [hotel] had taken steps to inform its workers of their legal obligations and to provide the education and training necessary to ensure compliance, then it may have avoided responsibility for the unlawful acts of its worker.”

QCAT found the hotel and the caretaker jointly and severally liable, ordering $313,316 in damages.

The victim suffered PTSD and as a consequence lost substantial income and incurred other expenses. The ordeal, described as ‘serious and shocking’ by the tribunal, prevented her from returning to work for nearly five years.

Implications for employers

This incident, the decision finding the employer vicariously liable, and the quantum of damages awarded highlights very serious safety and operational considerations for any employer who provides on-site accommodation for employees – such as resource employers with remote work accommodation villages.

Noting Ann Fitzpatrick’s comments about anti-discrimination training, ultimately this may have been avoided if the employer had taken reasonable steps to provide a safe working environment for its employee.

While it is impractical for an employer to always manage employees face-to-face, in typical circumstances if an employer can demonstrate that they have taken reasonable steps to prevent an incident occurring, it may have a defence to a vicarious action claim brought upon by the unlawful act of an employee.

AMMA strongly advises members to ensure anti-discrimination, bullying and appropriate behaviour policies are in place. If not, urgent steps should be taken to rectify this. Further, it is recommended that regular training to enforce such policies is undertaken, complete with documented attendance records.

Policies should also be periodically reviewed to ensure they reflect current legislation

AMMA’s workplace consultants regularly review members’ workplace policies to ensure they are taking reasonable steps to prevent discrimination, harassment, bullying and other unlawful behaviour in the workplace. Training is also be provided regularly on all of the above topics.

To learn more about how we can assist you, contact your local AMMA office.