Navigating Employer Liability: Lessons from Lehrmann vs. Channel 10

 

The outcome of the defamation case involving Bruce Lehrmann and Channel 10, as well as Lisa Wilkinson, carries crucial lessons for Australian employers. Ultimately the case was decided on the question of whether the defendants could establish on a balance of probabilities that Brittany Higgins had been raped by Bruce Lehrmann in the early hours of the morning in question at Parliament House. The Court found that the defense of truth was established and that Lehrman is a rapist.

Significantly, the events which occurred had their genesis in a pub where parliamentary employees including Lehrmann and Higgins had gathered and where a considerable amount of alcohol had been consumed. It is well established in law that gatherings such as these may constitute extensions of the workplace. Where an employee commits an unlawful act against a co-employee arising from such meetings or at weekend getaways or even outside accommodation provided by the employer, the employer may be vicariously liable for damages suffered by the victim.

The gravity of the employer’s liability has been amplified by the recent introduction of the positive duty under the Sex Discrimination Act. This duty mandates employers to take proactive measures to minimize the risks of sexual harassment and assault associated with the perpetrator’s employment. Under this new legislation, the Australian Human Rights Commission (AHRC) has outlined seven principles that employers must adhere to in order to fulfill their positive duty obligations.

Before the new law was in place, an employer could be liable if it failed to take all reasonable steps to prevent the harm from occurring- but it was left to the courts to decide what was reasonable in the circumstances. Under the new regime the AHRC has laid down seven principles to be applied and instituted by employers to comply with their positive duty.

A victim who is sexually harassed or assaulted in the workplace could probably sue the employer if all or at least most of the AHRC principles were not part and parcel of standard workplace operations.

This case underscores a significant warning to all Australian employers, emphasising the imperative of prioritising measures to prevent workplace harassment and assault. Find more about the 7 standards here: Respect at work