As you may have read, under antidiscrimination legislation an employer may avoid vicarious liability for an employee’s harassing conduct in the workplace if it can demonstrate that it took reasonable steps to prevent that harassment. Historically, “reasonable steps” has translated to implementing a system of policies, training and enforcement.
However, the Queensland Industrial Relations Commission (“QIRC”) has gone further in this decision and has provided one of the clearest confirmations yet regarding what constitutes “reasonable steps”. The QIRC’s view was that policies and regular training (including online training), while essential, are not necessarily sufficient to shield employers from vicarious liability for workplace sexual harassment.
The QIRC confirmed that how training is completed can matter just as much as what it covers.
Why this matters to employers
In this case, the employer appeared to have all the usual elements of a strong compliance framework, including:
a comprehensive Code of Conduct;
biennial Code of Conduct online modules;
an Equal Employment Opportunity Policy;
mandatory “Do the Right Thing” training; and
a grievance process.
On paper, this looked robust. However, the QIRC found these measures were not enough. The issue was not the content of the training, which the QIRC accepted was clear and appropriate, but because it was completed by employees at the same time as they worked, it meant there was a lack of genuine engagement with it.
The QIRC accepted that:
employees often skipped through training materials;
modules were completed while actively working and they were distracted; and
training tests could be passed without properly reading the content, as users could simply change answers until they succeeded.
Further, the QIRC also highlighted that additional or heightened measures are required where a known risk exists. In this case, the employee had received a prior final warning for the same category of conduct, several years earlier. The QIRC considered that this meant enhanced supervision or risk mitigation strategies were warranted and the employer should have required more frequent or targeted training tailored to the known risk the employee posed.
Because of this, the QIRC concluded that online training delivered and completed in this manner did not amount to a meaningful preventative step.
For most employers, the key takeaway is that if employees are completing training while performing work duties and cannot fully engage with it, the employer is going to find it difficult to rely on it as evidence of having taken “reasonable steps.”
What should employers be doing differently?
In the domain of positive duties and the use of online learning becoming increasingly common, employers are now expected to go that next step.
The QIRC decision requires employers to consider two key questions:
1. If we make findings of harassment-based conduct, but it is not so serious that the employee’s employment has been terminated, have we implemented enhanced measures for that employee to address the behaviour?
If an employee has breached harassment policies, the employer may be expected to take additional, heightened steps. This may include annual refresher training, face-to-face or facilitator lead sessions, targeted behavioural interventions, or other higher-risk protocols.
2. Does our training require genuine engagement?
Employees should be allocated dedicated time and space to complete training without simultaneously performing their work duties.
Training which is delivered online/electronically, and particularly where it is foundational to legislative compliance, should be configured to stop rapid skipping, random guessing, or unlimited re-tries. Employers should use face-to-face training discussions, systems with locked progression, scenario-based learning, comprehension checkpoints, and assessments that require real engagement rather than passive completion.
