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Workplace Bulletin

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8 ways to avoid being liable for your 

employees’ actions

Wednesday, 12th November 2014, by Loran McDougall

In today's Workplace Bulletin:
  • How to defend a claim of vicarious liability
Dear Reader,

Did you know that you can be liable for your employee’s actions, even if you had nothing to do with those actions?
Vicarious liability is the responsibility you, as an employer, have for the actions of your employees. If these actions are found to be unlawful, both you and the employee may be held responsible.
You can be vicariously liable for:
  • discrimination and harassment committed by employees or independent contractors (you may be liable even if the discrimination or harassment takes place outside of working hours, if it occurs in a situation connected with the person’s employment);
  • actions of HR employees, e.g. in relation to making decisions and taking action in regard to performance management and dismissal; and
  • your social media platform being used to:
    • harass or bully a person; or
    • discriminate against or vilify a person or a group of people.
In today’s bulletin, Charles Power explains what you need to do to protect yourself against vicarious liability.
Until next time,
Jessica Oldfield
Loran McDougall
Workplace Bulletin
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How to defend a claim of vicarious liability

by Charles Power
Editor-in-Chief, Employment Law Practical Handbook
You can defend a claim of vicarious liability for unlawful acts if you can prove that you took reasonable steps to prevent the act from occurring. What is reasonable is not defined in legislation, because it can vary from case to case and will depend on the size and nature of your business.
However, doing the following things will help you to prove that you have taken reasonable steps to prevent an employee from engaging in an unlawful act:
  1. Educate your employees in the relevant areas, i.e. diversity, discrimination, harassment and social media.
  2. Have policies that:
    • describe in plain English what constitutes unlawful actions such as discrimination and harassment;
    • specify the consequences of breaches;
    • explain the procedures for making complaints and reports;
    • are easily accessible by all employees; and
    • new employees are inducted into.
  3. Conduct general and refresher training in your policies for all employees, including training employees in your complaint-handling policies and procedures.
  4. Have qualified and trained people administer the policies.
  5. Resolve all complaints promptly, fairly and effectively.
  6. Act on all reports.
  7. Apply your policies consistently through appropriate disciplinary action.
  8. Ensure that employees are clear on exactly when workplace behaviour rules will apply outside the usual workplace or working hours.
Charles Power
Charles Power

Employment Law Practical Handbook

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