Vicarious Liability of Employers (Qld)
Employers have specific duties towards their employees and other workers. One of these is a duty of care to protect employees and workers from the actions of other workers that cause injury or are harmful. If an employee or worker causes injury to another employee or worker, the employer could be found vicariously liable for what occurred. This does not mean that the person who caused the injury is not liable. The employer and the person who caused the injury can both be found to be liable. This article outlines how vicarious liability applies to employers in Queensland.
When is vicarious liability enlivened?
Examples of injuries or harm that can come to a worker for which an employer may be vicariously liable include:
- Injuries caused by an act of discrimination or sexual harassment by one employee or worker to another; or
- Physical injuries caused by the negligence of an employee or worker.
Types of workers and vicarious liability
Whether a worker is an employee or a contractor can have an impact on whether an employer can be found to be vicariously liable for their actions. Employees are directly employed by their employer and receive a salary or payment on a commission basis, whereas contractors operate their own business for which they invoice the employer. In general, employers are not liable for the actions of contractors. However, this is not an infallible rule, and there have been cases where employers have been held to be liable for independent contractors’ actions.
When and where can an employer be found to be vicariously liable?
For an employer to be found to be vicariously liable for the action of an employee or worker, the action that caused the injury must occur ‘in the course of work’. What ‘in the course of work’ means has been considered by case law, the courts have found that this phrase should be ‘construed broadly’. The action does not have to occur in a location where employees or workers carry out their work duties. It can occur in other places and contexts that are work-related, such as at social functions related to work, like the work Christmas party. It can also occur at seminars or conferences that an employer has paid for or on a work-related trip.
What are defences to vicarious liability?
If an employer took ‘reasonable steps’ to protect its workers from other workers’ potentially injurious actions, this can amount to a defence to a claim based on vicarious liability. What is considered ‘reasonable steps’ may differ between businesses as large businesses generally have more resources than small companies.
Some examples of what may be reasonable steps include:
- Appropriate training being given upon commencement to new workers about proper workplace behaviour;
- Appropriate training being provided upon commencement to new workers about how to avoid various safety hazards while working.
Each case will be decided on its particular circumstances.
Suppose the worker who caused the injury was not acting within their employment scope or was engaging in serious or wilful misconduct. In that case, the employer also may not be found vicariously liable for their actions.
What is the relevant legislation?
Claims against employers for vicarious liability can be made according to common law (case law) in Queensland. There are also various pieces of Queensland legislation that may be relevant to such claims.
The Anti-Discrimination Act 1991 considers employers’ vicarious liability in section 133. This section makes employers vicariously liable for discrimination, or sexual harassment carried out by employees, workers or agents but makes it a defence for an employer if they can prove they took reasonable steps to prevent the relevant actions.
The Civil Liability Act 2003, contains specific provisions relating to child abuse and when institutions or employers may be liable for this.
The Work Health and Safety Act 2011 details employers’ obligations and duties to employees and workers about work health and safety obligations.
Robinson v Cape York Hospital and Health Service  QSC 165
In 2017, the Queensland Supreme Court handed down a decision where an employer was found to be vicariously liable for the actions of an employee. The plaintiff in Robinson v Cape York Hospital and Health Service had been subjected to mistreatment by her manager. Robinson had been the employer’s Director of Nursing, and her manager had been the District Chief Executive Officer.
Robinson was subjected to mistreatment including a failure to deal properly and promptly with a complaint that had been lodged by another employee against the plaintiff, publicly rebuking the plaintiff in a loud and aggressive manager, failing to include the plaintiff in relevant meetings, removing responsibility and publicly contradicting her. The plaintiff had raised her concerns with her manager on many occasions, and her manager had told her that her concerns were ‘all in her head’.
Attributing knowledge of the manager’s behaviour to the employer was made easier by the fact that the manager was the District Chief Executive Officer. The court found that the employer was directly liable and vicariously liable for the employee’s conduct, and the plaintiff was awarded more than $1.4 million in damages.
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