With so much recent attention centred on the workplace and employers’ obligations, a recent decision of the Supreme Court of New South Wales has come as a timely reminder of the importance of implementing and maintaining policies on discrimination and harassment. Failure to do so could expose employers to having to pay exemplary damages for breach of contract.
Devandar Naidu was employed by Group 4 Securitas Pty Limited (Group 4) as a security guard. He was assigned to work for one of Group 4’s clients, Nationwide News Ltd (News), under the direct supervision of their Security and Fire Manager, Lance Chaloner. Although Mr Naidu worked as Mr Chaloner’s assistant at News, he remained at all times an employee of Group 4.
Mr Naidu claimed that he was subjected to extensive bullying by Mr Chaloner between 1992 and 1996. The bullying took the form of racial abuse, threats of violence, excessive and unpaid work hours, financial threats, the need to perform tasks unrelated to work duties and sexual abuse. As a result of Mr Chaloner’s bullying conduct, Mr Naidu was diagnosed with serious depression and post-traumatic stress disorder.
Justice Adams found that:
- Mr Chaloner’s bullying conduct constituted a breach of Group 4’s contractual obligations to provide a safe place of work for Mr Naidu.
- Group 4 had a discrimination and harassment policy, which formed a condition of Mr Naidu’s contract of employment. It obliged Group 4 to ensure, so far as reasonably practicable, that Mr Naidu would not be subjected to the conduct contemplated by the policy.
- Group 4 failed to implement their policy because they did not take any action when they were aware that Mr Chaloner regularly used intimidation techniques towards his staff and was often unreasonable and demanding. In addition to this, Group 4 employees were on site and were aware of Mr Chaloner’s treatment of Mr Naidu but failed to report it to Group 4’s management.
- Even if such a policy was not in place, there was an implied term in Mr Naidu’s contract that Group 4’s servants or agents would not subject him to intimidation, racial or personal vilification, demeaning, harassing or abusive conduct or threats of such conduct or violence and that it would protect Mr Naidu from such incidences occurring in the course of his employment.
News was also found to be vicariously liable for the conduct of Mr Chaloner and for failing to provide Mr Naidu with a safe workplace and safe system of work.
Justice Adams awarded $1.9 million in damages to Mr Naidu which included exemplary damages against News, general damages, lost earnings, medical expenses, costs and interest.
Employers should be aware that their duties extend to non-standard work relationships such as contractors, sub-contractors, a contractor’s employees and labour hire employees. There are also steps that employers can take to ensure that their workplace is free from discrimination and harassment such as:
- implementing and maintaining policies that address discrimination, sexual harassment and bullying;
- ensuring these policies are communicated to all employees;
- ensuring that all employees understand what constitutes prohibited conduct;
- ensuring management understand their obligations to take active steps to prevent conduct such as bullying from taking place;
- dealing swiftly and thoroughly with any complaints about prohibited conduct, particularly to prevent the complainant being subjected to any further incidents.
For advice regarding discrimination, sexual harassment or bullying policies, please do not hesitate to contact Sarah Wheeler.
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Sarah Wheeler
Solicitor
Phone: 612 9228 9234
Sarah_Wheeler@tresscox.com.au
And Nicky Keeling.
To view contact details of the entire TressCox Employment and Industrial Relations Team please click here.
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