Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Outcome: cited
These principles represent settled law in this country. Reference was made to them recently by Kirby J in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [157] - [161] . 35 I have already referred to the reasons given by the learned Federal Magistrate for his decision. They may be summarised as: &#8226; no facts alleged by the applicant could amount to any sexual harassment of the applicant by or on behalf of the second respondent or any of its agents or employees &#8226; asking the applicant to read the first respondent's complaint of sexual harassment against him, or by failing to dismiss the first respondent's complaint summarily without calling for his response, were not sexual harassment of the applicant &#8226; even assuming that the first respondent was the employee of the second respondent at material times, no facts had been alleged that would or could amount to sexual harassment by the first respondent of the applicant. 36 In this case before me, I have reservations concerning the finding of Jarrett FM, in relation to the potential vicarious liability of the second respondent for the actions of the first respondent, that the claim against the second respondent did not disclose a reasonable cause of action because no facts were alleged by the applicant that would or could amount to sexual harassment of the applicant by the first respondent. 'Sexual harassment' is defined by s 28A SD Act as follows: '(1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: "conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing. 37 Vicarious liability of employers for conduct of their employees in breach of Pt II Div 3 of the SD Act is contemplated by s 106, which provides as follows: '(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent: (a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or (b) an act that is unlawful under Division 3 of Part II; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.