In this case, the Court of Appeal had to determine whether the applicant was vicariously liable under s 133(1) of the Anti-Discrimination Act 1991 for the third respondent’s indecent assault of the first respondent in their shared employer provided unit while the third respondent was on-call at a hotel owned by the applicant. The critical question was whether the indecent assault occurred “in the course of work”. Significantly, Fraser JA looked to the text of s 133(1) and its statutory purpose to conclude that, as the assault occurred during the third respondent’s defined hours of work and by being in the unit he was fulfilling his contractual obligation to be in or near the hotel, there was a “sufficiency” of connection between the employment and the assault for it to have occurred “in the course of work”.
Fraser and Gotterson JJA and Bond J
21 December 2018
The first respondent was employed by the second respondent, which was in turn the wholly owned subsidiary of the applicant. . The applicant provided accommodation at the Oaks Lexicon Hotel free of charge to the first respondent and the third respondent, one of its employees. . One night, while the third respondent was on call to provide after-hours caretaking services at the Oaks Lexicon Hotel, he indecently assaulted the first respondent in their shared accommodation. . The first respondent lodged a claim in QCAT against the applicant and second and third respondents for sexual harassment pursuant to s 118 of the Anti-Discrimination Act 1991. . The claim against the applicant was that it was vicariously liable under s 133(1) for the third respondent’s actions. Section 133(1) provides:
- (1)If any of a person’s workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
At first instance, the third respondent did not appear and the claim against the second respondent was settled. . The applicant, meanwhile, contended that the third respondent’s contravention was not “committed in the course of work under his contract for services with the applicant”, and so did not fall within the ambit of s 133(1). . The tribunal member disagreed, in a conclusion that was endorsed on appeal to the appeal tribunal. –.
The applicant sought leave to appeal to the Court of Appeal. There, the applicant’s first – and central – ground of appeal was that the appeal tribunal “erred in law in finding that the contravening conduct of the third respondent occurred in the course of work within the meaning of s 133(1) of the Anti-Discrimination Act”. .
On the applicant’s construction, “work” in s 133(1) only refers to “active” obligations, not “passive” obligations such as those of the third respondent. . Fraser JA, with whom Gotterson JA and Bond J each agreed, disagreed with the applicant’s construction. . In his Honour’s view, “the policy underlying s 133 comprehends persons described in s 133(1) taking positive steps to eliminate sexual harassment by those who work for them”. . The narrow construction favoured by the applicant would undermine this, and was inapt to achieve the purposes of the Act. . Accordingly, his Honour found that “work” in s 133(1) “comprehends the more general meaning ‘employment’ or ‘job’”. .
His Honour next addressed the meaning of the phrase “in the course of work”. In the applicant’s submission, due to its similarity with the common law principles of vicarious liability in tort, those principles should be taken into account in interpreting this phrase. . Fraser JA disagreed for two reasons. First, the Act was enacted at a time when “there was considerable uncertainty about the content of those principles”. . Secondly, unlike in cases of common law vicarious liability, “work” in s 133(1) extends beyond the master and servant relationships which are subject to the common law principles. .
In his Honour’s view, in light of its text and statutory purpose, “in the course of work” should be construed ‘at least as broadly’ as ‘in the course of employment’ was in The Commonwealth v Lyon (1979) 24 ALR 300. . In Lyon, Deane J took the phrase to include injuries incurred when an employee was engaged “in something which is a concomitant of, or reasonably incidental to, his employment”. . Accordingly, Fraser JA concluded that the tribunal member did not err in finding that the third respondent’s contravention occurred in the course of work.
In the event, Fraser JA, with whom Gotterson JA and Bond J each agreed, granted leave to appeal on the applicant’s first ground of appeal and dismissed the appeal. .