Are your workplace training procedures adequate?

Please note the following article contains language some readers may find offensive.

Principals will be all too aware of their obligation to provide a safe workplace for all employees, officers and agents (workers), and may already have appropriate workplace policies and procedures in place to ensure that workers are protected against a risk of physical harm, acts of bullying, discrimination, harassment, sexual harassment, victimisation and other psychosocial risks.

However, the recent decision in Loquias v The Star Entertainment Group and John Dwyer^[1], highlights the risks to principals who have failed to:

• conduct proper induction into those policies and procedures;
• engage workers in regular and meaningful refresher training; and/or
• actively enforce compliance with the policies and procedures.

Key Facts of Case

The Complainant, Ms Loquias, a 21-year-old casino Games Dealer, claims that the Gaming Area Manager, Mr Dwyer, sexually harassed her from September 2020 to March 2021 at work, and at a private social function which occurred on the evening of 5 March 2021 at a venue away from the workplace.

Specifically, the Complainant alleged that, in the course of her employment, Mr Dwyer had:

• made unwelcome sexualised comments such as, “I didn’t mind that you came to training in a singlet because I got to see your tits”;
• repeatedly pinched and touched her arm;
• touched her forehead and remarked that she should not frown as it would cause her to “look ugly”;
• responded to her sexual harassment complaint about other workplace supervisors by stating, “You're lucky I wasn't there. I would have done a lot worse to you".

(Workplace Conduct)

Separately, the Complainant alleged that, while she was attending the birthday party of a colleague (who was also Mr Dwyer’s niece), Mr Dwyer had:

• made unwelcome comments to the effect that her “arse and tits looked good” and remarked as to 'the things he would do if he were younger';
• felt the Complainant’s buttocks;
• grabbed the Complainant’s buttocks; and
• threw ice at the Complainant, and pushed her, before telling her he had done so in an attempt to look up her dress.

(Social Function Conduct)

The Complainant reported Mr Dwyer’s conduct to police. In subsequent prosecution proceedings in the Magistrates Court, Mr Dwyer pleaded guilty to charges of assault.

The Complainant thereafter brought proceedings against Mr Dwyer and her employer, The Star Entertainment Group (Star), in the Queensland Industrial Relations Commission (QIRC), seeking remedies in respect of purported breaches of the Anti-Discrimination Act 1991 (Qld) (AD Act).

In those proceedings, the Complainant alleged that Mr Dwyer had subjected her to sexual harassment, both within the workplace and a private social function.

Separately, she argued that the Star was vicariously liable for Mr Dwyer’s conduct, both within the workplace, and at the private social function. In making the latter allegation, the Complainant argued that there was sufficient nexus between the workplace and the social function to attract vicarious liability for reasons that the function had been organised by an employee of the Star, the parties knew each other through their shared work at the Star, approximately half of the attendees at the function were employees of the Star, the Complainant had spent the whole of her time at the function with her colleagues, and the Social Function Conduct would not have occurred “but for” Mr Dwyer’s escalating Workplace Conduct.

The Star sought to defend the claims against it by submitting that it had taken reasonable steps to prevent Mr Dwyer from engaging in sexual harassment because it had:

• published and implemented workplace policies, including a Code of Conduct; Misconduct and Discipline Policy, Grievance Policy, and Equal Employment Opportunity Policy;

• Mr Dywer and the Complainant had each agreed to comply with those policies by way of their acceptance of the terms of their employment agreements;

• Mr Dwyer had participated in biennial mandatory online training modules which dealt with the obligations imposed upon him by the Star’s workplace policies.

The Star argued that the Complainant’s evidence supported a position that no additional training beyond that provided would have prevented Mr Dwyer’s conduct, particularly given the comments made by him at the social function to the effect that he ‘could do as his liked because they were not at work’.

Further, the Star submitted that it could not be held vicariously liable for the Social Function Conduct because neither the Complainant nor Mr Dwyer attended the social function ‘because of, or for the purposes of’ their employment, nor was any part of the social function organised, authorised or induced by, the Star.

When giving evidence, Mr Dwyer admitted that he had completed the online training modules offered by the Star but that he did so while engaging in his normal work.  He stated that had largely skipped through the training, given that it was not necessary to read the accompanying information because he knew he could always change an answer if he got it wrong the first time. 

Decision of QIRC

Sexual Harassment

Industrial Commissioner Power accepted that the Workplace Conduct and Social Function Conduct was established on the evidence and constituted sexual harassment for the purpose of section 119 of the AD Act. While she accepted that the evidence did not support a finding that Mr Dwyer had engaged in the conduct 'with the intention of offending, humiliating or intimidating’ the Complainant,^[2] she nevertheless accepted that the conduct was such that “a reasonable person would have anticipated the possibility that the [Complainant] would be offended, humiliated or intimidated by the conduct.'

Specifically, Commissioner Power observed that:

• ‘At 21 years old, the Complainant was significantly younger than Mr Dwyer who was aged 53 years old;

• The Complainant was a young female; and

• Although the relationship between the parties may not have been one of direct supervisor / subordinate, the Complainant was in a junior casual position as a Games Dealer with Mr Dwyer occupying a more senior role managing the Gaming Area Supervisors.’^[3]

Commissioner Power found that the circumstances created a clear power imbalance such that a reasonable person would have anticipated the possibility that the Complainant would be offended, humiliated, or intimidated by the Workplace Conduct, establishing sexual harassment in contravention of s 118 of the AD Act.

Commissioner Power did not, however, accept that the Social Function Conduct was work-related such as to attract a finding of vicarious liability on the part of the Star in respect of that conduct.  Specifically, the Commissioner found that it was a private event which was entirely unconnected to work, which took place outside of work hours and outside of the work premises, and the Star did now know about, nor authorise, the function.  That is, the only connection to the Star was that the parties knew each other through their shared employment. 

Vicarious Liability

Commissioner Power found that the Star’s provision of online training modules could not be considered ‘reasonable steps’ such as to establish a defence under section 133(2) of the AD Act, given that a worker could complete the same while simultaneously conducting their ordinary work duties, and where its completion did not require proper engagement. 

Moreover, Commissioner Power had regard to an earlier complaint which had been made against Mr Dwyer in 2016 to find that, once the Star had substantiated the prior complaint and issued Mr Dwyer with a final warning, it was incumbent on it to ensure that measures were put in place to prevent a repeat occurrence of sexual harassment.  In this case, the Star took no additional steps save as to require Mr Dwyer to continue to attend biennial refresher training in the ordinary course.

On this basis, the Star was held to be vicariously liable for the contraventions of the AD Act by Mr Dwyer referable to the Workplace Conduct. 

Key Takeaways

The above case demonstrates that an employer’s obligations stretch well beyond simply publishing workplace policies and requiring workers to acknowledge the existence of those policies. 

Rather, employers must ensure that all training in respect of their workplace policies is delivered in a manner which provides for meaningful engagement by workers such as to ensure that they are fully informed of their obligations under Workplace Health and Safety laws. 

Further, once a worker has been found to have contravened a workplace policy which has the potential to cause harm to another person, the onus rests with the employer to take proper steps to eliminate the risk of future breaches. 

Where an employer fails to take reasonable steps, it will face exposure to a finding of vicarious liability in the event of a breach by the worker.

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