Last Updated 17 August 2021
The basic scheme of the Anti-discrimination Act 1991 (Qld) (Anti-discrimination Act) is to make discrimination unlawful and to allow people to lodge complaints and, where the complaint cannot be resolved, to also proceed with a civil action against the other person or entity concerned.
The Anti-discrimination Act contains stringent provisions with respect to vicarious liability (s 133) (i.e. a person or company’s responsibility for the acts of employees or agents).
A person is vicariously liable for the acts of their workers or agents unless they can prove, on the balance of probabilities, that they took reasonable steps to prevent contraventions (s 133(2) Anti-discrimination Act).
An employer would have to show that reasonable steps had been taken to ensure that:
- the recruitment and selection of staff was non-discriminatory
- educational programs about discrimination and sexual harassment were operating for staff
- the employer had a specific well-publicised policy on discrimination and sexual harassment
- the employer had an effective complaints mechanism to deal with complaints of discrimination and sexual harassment
- employees had equitable access to benefits, promotion and training, and well-informed and responsible supervisors.
The Anti-discrimination Act sets out ‘reverse onus’ provisions governing vicarious liability, which place a burden on employers to prove they took reasonable steps (for a detailed example see the case Boyle v Ozden & Ors (1986) EOC 92–165).