Oaks Hotels & Resorts Limited v Knauer [2018] QCA 359 

ISSUE

Whether an employee’s indecent assault of the first respondent occurred “in the course of work” within s 133(1) Anti-Discrimination Act 1991 to make the applicant vicariously liable for the employee’s act.

BACKGROUND

The first respondent (F) was employed by the Second respondent (S), a wholly owned subsidiary of the Applicant in this case (A). F and the third respondent (T) were arranged to reside together at the property A managed and operated. A engaged T to provide after-hours caretaking services between 10.00 pm and 6.00 am. At 5 am on or about the first day of T’s and F’s residing together T indecently assaulted F. F commenced proceeding in the tribunal against A, T and S for sexual harassment pursuant to s 118 of the Anti-Discrimination Act 1991 (the Act).  

WAS A LIABLE FOR T’S CONTRAVENTION OF THE ACT?

F claimed that A was vicariously liable under s 133(1) of the Act for T’s actions. This section provides that if a person’s worker contravenes the Act in the course of work, both the person and the worker are jointly and severally liable for the contravention. A contested that T’s contravention was not committed in the course of work under his contract for services with A, therefore, A was not liable for T’s contravention. The tribunal disagreed with A, stating that ‘in the course of work’ in s 133(1) of the Act should be given a wide interpretation due to remedial nature of the Act. A sought leave to appeal to the Court of Appeal.

CONSTRUCTION OF ‘IN THE COURSE OF WORK’

Meaning of the word ‘work’

A advanced an argument that the word ‘work’ in the phrase ‘in the course of work’ in s133(1) implies only active obligations of T under the contract, such as taking calls, respond to emergencies, report incidents, etc. In resolving this issue of construction, the Appeal Court has turned to the statutory purpose underlying s133 ‘to promote equality of opportunity for everyone by making a person liable for certain acts of the person’s workers’ contained in s132. The narrow construction of the word ‘work’ offered by A would undermine this purpose. Therefore, the Court held that the word ‘work’ should be understood more generally as ‘employment’ or ‘job’, defeating A’s argument. 

Meaning of the ‘in the course of’

A argued that the construction of ‘in the course of’ in s 133(1) should take into account the common law principles of vicarious liability in torts involving intentional criminal conduct. The Court disagreed. It was held that the words ‘in the course of work’ in s 133(1) should be construed at least as broadly as ‘in the course of employment’ in The Commonwealth v Lyon Queensland Law Reporter, where this phrase was taken to include activities which were a concomitant of, or reasonably incidental to, the worker’s employment. Therefore, concluded that the tribunal member did not err in finding that the third respondent’s contravention occurred in the course of work.

RESULT

The Queensland Court of Appeal found the contravention occurred ‘in the course of work.’

Leave to appeal on the applicant’s first ground of appeal was granted but ultimately the appeal was dismissed.