Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13

Von Schoeler v Allen Taylor and Company Ltd Trading as Boral Timber (No 2) [2020] FCAFC 13

Boral failed to establish that it took all reasonable steps to prevent Mr Urquhart from committing sexual harassment as required by s 106(2) of the Sex Discrimination Act 1984 (Cth), as the evidence about policies and training was insufficient to demonstrate preventive action or communication of consequences to employees. The primary judge's inordinate delay and lack of adequate reasons rendered the judgment unsafe. Accordingly, Boral is vicariously liable for the sexual harassment by Mr Urquhart, and the matter is remitted for damages and reconsideration of outstanding claims by a different judge.

Parties
Appellant: Lilo Hana Von Schoeler; First Respondent: Allen Taylor and Company Ltd trading as Boral Timber; Second Respondent: John Urquhart; Third Respondent: Timothy Hey
Jurisdiction
Australia
Judgment Date
20 February 2020
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
Sex Discrimination, Sexual Harassment, Vicarious Liability, Delay in Reasons for Judgment, Adequacy of Reasons, Victimisation, Discrimination Based on Family Responsibilities
Human Rights Law Administrative Law Employment Law Sex Discrimination Sexual Harassment Vicarious Liability Delay in Reasons for Judgment Adequacy of Reasons +2 more

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Parties

Lilo Hana Von Schoeler

Appellant

Allen Taylor and Company Ltd trading as Boral Timber

First Respondent

John Urquhart

Second Respondent

Timothy Hey

Third Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the primary judge erred in finding that employer took all reasonable steps to prevent sexual harassment under s 106(2) Sex Discrimination Act 1984 (Cth)
  2. 2 Whether the employer, Allen Taylor and Company Ltd trading as Boral Timber, is vicariously liable for sexual harassment of the appellant by Mr Urquhart
  3. 3 Whether the inordinate delay (over six years) between hearing and judgment rendered the primary decision unsafe

Ratio Decidendi

Boral failed to establish that it took all reasonable steps to prevent Mr Urquhart from committing sexual harassment as required by s 106(2) of the Sex Discrimination Act 1984 (Cth), as the evidence about policies and training was insufficient to demonstrate preventive action or communication of consequences to employees. The primary judge's inordinate delay and lack of adequate reasons rendered the judgment unsafe. Accordingly, Boral is vicariously liable for the sexual harassment by Mr Urquhart, and the matter is remitted for damages and reconsideration of outstanding claims by a different judge.

Court Disposition

Appeal allowed

Orders

  • The name of the first respondent amended to 'Allen Taylor and Company Ltd trading as Boral Timber'.
  • Appeal allowed.