Open All Hours: The Reach of Vicarious Liability in ‘Off-Duty’ Sexual Harassment Complaints

DOI10.22145/flr.36.2.3
Published date01 June 2008
Date01 June 2008
Subject MatterArticle
OPEN ALL HOURS: THE REACH OF VICARIOUS LIABILITY IN 'OFF-DUTY' SEXUAL HARASSMENT COMPLAINTS OPEN ALL HOURS: THE REACH OF VICARIOUS LIABILITY
IN 'OFF-DUTY' SEXUAL HARASSMENT COMPLAINTS
Brook Hely*
INTRODUCTION
When an employee1 sexually harasses a fellow employee away from the workplace or
outside work hours, such as at a bar or a private party, difficult questions arise as to
whether the employer should be held vicariously liable. Conversely, difficult questions
arise as to the extent to which an employer might legitimately seek to supervise or
regulate the conduct of its employees outside of work.
This article traces the key decisions that have considered this issue of sexual
harassment away from the workplace or outside normal work hours (for convenience,
I have referred to such conduct as 'off-duty sexual harassment').
As the discussion in Part Two illustrates, the leading decisions in the Australian
federal jurisdiction considering the scope of vicarious liability for off-duty sexual
harassment have taken a consistently broad approach to the requisite nexus with the
employment. This culminated in the watershed decision of the Federal Magistrates
Court last year in Lee v Smith,2 where an employer was held vicariously liable when an
employee raped a fellow employee at a private residence following a social dinner
party.
Whilst the issue is yet to receive much attention in the States and Territories,
consideration is given to the similarities and differences between the relevant statutory
provisions in each of the State, Territory and federal jurisdictions. Consideration is also
given to the approach taken in the United Kingdom, where the relevant statutory test
is similar to that of several of the Australian States. In comparing each of the different
statutory provisions, this article submits that the federal jurisdiction is likely to provide
a more attractive avenue for applicants, at least in relation to the test for vicarious
liability.
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*
BA (Hons), LLB (Hons), LLM (Human Rights and Social Justice). Senior Lawyer, Australian
Human Rights Commission. The views expressed are my own and not those of the
Commission. Special thanks for the useful comments on an earlier draft from Jonathon
Hunyor, Tristan Garcia, Dr Belinda Smith, Karen Toohey, Jodie Ball, Kara Ward and
Elizabeth Broderick, as well as two anonymous referees.
1 It is noted that the relevant vicarious liability provisions also relate to agents, as well as
employees. I have chosen, however, to focus on the employer/employee relationship for
the purposes of this article.
2
[2007] FMCA 59; (2007) EOC ¶93–456 ('Lee').

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Consideration is also given to the inter-relationship between sexual harassment law
and employment law (typically, unfair dismissal cases). Notwithstanding the
differences between these two areas of law, it is submitted that a consistent approach
in relation to the nexus with employment threshold is desirable. This would contribute
to greater harmony in the respective rights and responsibilities of employers and
employees alike.
Finally, this article contemplates the appropriate way forward in relation to off-
duty sexual harassment. It is acknowledged that, in the march to eliminate sexual
harassment in employment, courts need to be careful not to swing the pendulum too
far against employers, lest other important employee rights be curtailed along the way.
However, this article suggests that such concerns can be adequately addressed whilst
still maintaining a broad approach to the question of whether off-duty sexual
harassment is sufficiently connected with employment to attract the operation of
vicarious liability provisions.
PART ONE: VICARIOUS LIABILITY AT COMMON LAW
Overview of the common law position
In short, the position at common law is that an employer is vicariously liable for acts
committed by an employee in the course of his or her employment to the extent that
the employee is acting within the scope of his or her authority and is performing
employment duties or is otherwise performing acts incidental to the performance of
those duties.3 This extends to acts committed in the course of an unauthorised mode of
carrying out an authorised act.4
By comparison, an employer is not vicariously liable at common law for acts
committed by an employee outside the scope of his or her employment, commonly
referred to as acts engaged in by the employee 'on a frolic of his (or her) own'.5
Rejection of the common law approach in sexual harassment cases
It is now fairly well settled that principles of vicarious liability derived from the
common law are inappropriate when applying sexual harassment legislation. Rather,
the courts have acknowledged that the relevant provisions conferring liability on an
employer are to be construed in a manner consistent with the remedial purposes of
such legislation.
In Canada, this was settled by the Supreme Court in Robichaud v Canada.6 Justice La
Forest, who delivered the decision of the Court, rejected the application of common
law principles of vicarious liability derived from torts, on the basis that such principles
were aimed at:
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3
Deatons Pty Ltd v Flew (1949) 79 CLR 370. See generally, Rick Glofcheski, 'A Frolic in the
Law of Tort: Expanding the Scope of Employers' Vicarious Liability' (2004) 12 Tort Law
Review 18, 19–23.
4
See, eg, Scott v Davis (2000) 204 CLR 333; John Salmond, The Law of Torts (1st ed, 1907) 83; R
F V Heuston and R A Buckley, Salmond and Heuston on the Law of Torts (21st ed, 1996) 443.
5
Morris v C W Martin & Sons Ltd [1966] 1 QB 716, 733–4 (Diplock LJ), discussed in NSW v
Lepore (2003) 212 CLR 511, 535–6 [40]–[41] (Gleeson CJ), 614 [308] (Kirby J).
6
[1987] 2 SCR 84 ('Robichaud').

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...activities somehow done within the confines of the job a person is engaged to do, not
something, like sexual harassment, that is not really referable to what he or she was
employed to do.7
The same approach was taken by the United Kingdom Court of Appeal in Jones v
Tower Boot Co Ltd.8 For instance, Waite LJ noted that the application of common law
principles of vicarious liability would lead to a result entirely incongruous with the
objects of anti-discrimination legislation, whereby 'the more heinous the act of
discrimination, the less likely it will be that the employer would be liable.'9 His
Honour held that such an approach:
...cuts across the whole legislative scheme and underlying policy [of the relevant Act] ...
which is to deter racial and sexual harassment in the workplace through a widening of
the net of responsibility beyond the guilty employees themselves.10
In Australia, the leading authority on this point is the decision of the Full Federal
Court in South Pacific Resort Hotels Pty Ltd v Trainor.11 The facts and reasoning in
Trainor are discussed in greater detail below. Suffice to note here, however, that Kiefel J
applied the reasoning in both Robichaud and Tower Boot to support her conclusion that
tort principles of common law were not appropriate to the issue of vicarious liability
for sexual harassment under s 106(1) of the Sex Discrimination Act 1984 (Cth) ('SDA').12
The joint judgment of Black CJ and Tamberlin J adopted a similar approach,
concluding that cases decided under common law principles 'can have, at best, only
limited value in the quite different context of the SDA.'13
However, accepting that tort principles are not appropriate, this nevertheless leads
one to ask what is the scope of vicarious liability for off-duty sexual harassment? And
to what extent is a nexus with the workplace required? As the following discussion
illustrates, this question has been answered broadly in the Australian federal
jurisdiction.
PART TWO: FEDERAL JURISDICTION
Section 106 of the SDA
Under the SDA, vicarious liability arises by operation of s 106(1), which provides:
106. Vicarious liability etc
(1)
Subject to subsection (2), where an employee or agent of a person does, in
connection with the employment of the employee or with the duties of the agent
as an agent:
(a)
an act that would, if it were done by the person, be unlawful under
Division 1 or 2 of Part II (whether or not the act done by the employee
or agent is unlawful under Division 1 or 2 of Part II); or
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7
Ibid 92.
8
[1997] 2 All ER 406 ('Tower Boot').
9
Ibid 415 (Waite LJ, Potter LJ agreeing).
10 Ibid.
11 (2005) 144 FCR 402 ('Trainor').
12 Ibid 414–5 [64]–[70].
13 Ibid 410 [42].

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(b)
an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
Division 3 of Part II (referred to in paragraph (b) above) is the relevant Division of
the SDA that makes sexual harassment unlawful. So, for present purposes, the...

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