Commonwealth not Police Commissioner liable as employer

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Commonwealth not Police Commissioner liable as employer

An Australian Federal Police agent's attempt to have both the Commonwealth and the AFP Commissioner held vicariously liable for her alleged sexual harassment and victimisation has been successfully opposed by the commissioner.

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An Australian Federal Police agent's attempt to have both the Commonwealth and the AFP Commissioner held vicariously liable for her alleged sexual harassment and victimisation has been successfully opposed by the commissioner.
 
Justice Phipps of the Federal Magistrates Court summarily dismissed the claim against the commissioner after finding that while he had 'all the rights, duties and powers of an employer in respect of AFP employees, he is not the employer, the Commonwealth is the employer.' 
 
Justice Phipps went on to say it was 'clear beyond argument that the complaint is made against the organisation, the Australian Federal Police, and not against the individual'. The court, however, rejected the Commonwealth's argument that provisions of the Sex Discrimination Act 1984 meant it could not be held vicariously liable for a claim of victimisation. 
 
Background
 
A member of the Australian Federal Police alleged unlawful discrimination by reason of sexual harassment and victimisation under section 46PO of the Human Rights and Equal Opportunity Commission Act 1986. The respondents in one application were three named members of the Federal Police, the Commissioner of the Australian Federal Police and the Commonwealth of Australia. In the other the commissioner and the Commonwealth were the respondents. The AFP agent alleged that the three named respondents carried out the activities constituting the harassment and that the Commissioner and Commonwealth were vicariously liable for their actions. The commissioner applied for summary dismissal of all proceedings against him, the Commonwealth for summary dismissal of the victimisation claims.
 
The commissioner argued that he was not the employer of members of the Federal Police and so could not be vicariously liable for their actions. On behalf of both the commissioner and the Commonwealth it was submitted that there could not be vicarious liability for a claim of victimisation.
 
Findings
 
Justice Phipps of the Federal Magistrates Court upheld the commissioner's summary dismissal application after finding the complaint could not be read as a complaint against him. 'He is not the Australian Federal Police, he is part of the Australian Federal Police. While he has all the rights, duties and powers of an employer in respect of AFP employees, he is not the employer, the Commonwealth is the employer.' The court said it was 'clear beyond argument that the complaint is made against the organisation, the Australian Federal Police, and not against the individual'.
 
The Commonwealth, however, was not successful in arguing its case for summary dismissal. It submitted that provisions of the Sex Discrimination Act 1984 meant it could not be held vicariously liable for a claim of victimisation. The court found that in a summary dismissal application, it could not be assumed that section 110 of the SDA had no operation because repeal of other provisions had made it redundant. It said it referred only to part II, therefore, it did not apply to the victimisation provision in section 94.
 
'The intention of section 110 prior to the April 2000 amendments, was to restrict rights of action in respect of acts made unlawful by Part II to those expressly provided for in the Act. A claim relying on common law vicarious liability could not be brought. That there is not a corresponding provision in the April 2000 amendments to HREOCA is an argument that Parliament did not intend to exclude those rights.'
 
The court went on to say that vicarious liability had been applied in a claim (Kordos v Plumrose) under the Racial Discrimination Act 1975 at a time when the Act contained no express statutory provision. It said there were 'substantial arguments' that vicarious liability could apply to victimisation claims.
 
See: Taylor v Morrison & Ors[2003] FMCA 79 (12 March 2003).
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