Lehrmann and Higgins: Some Lessons for Employers

The outcome of the defamation case brought by Bruce Lehrmann against Channel 10 and Lisa Wilkinson holds some important lessons for employers in Australia. Ultimately the case was decided on the question of whether the defendants could establish on a balance of probabilities that Brittany Higgins had been raped by Bruce Lehrmann in the early hours of the morning in question at Parliament House. The Court found that the defence of truth was established and that Lehrman was a rapist.

The rape which ultimately occurred had its genesis in a pub where parliamentary employees including Lehrmann and Higgins had gathered and where a considerable amount of alcohol had been consumed. Sexual harassment or sexual assaults committed by one employee against another frequently occur outside of ordinary working hours and at locations removed from the physical workplace. Where an employee commits an unlawful act against a co-employee at after-hours social gatherings or weekend getaways or even outside accommodation provided by the employer, the employer may be vicariously liable in law for damages suffered by the victim.

The employer is liable for unlawful acts of an employee and a principal is liable in respect of unlawful acts of an agent if they fail to take all reasonable steps to prevent the act from occurring. Taken on its own this form of vicarious liability requires a court or tribunal to determine what is reasonable on the facts of the case.

The scope of employer’s potential liability has been widened by the coming into force of the positive duty owed by employers following the passing of the Respect at Work Act at the end of 2022 to minimize the risks of sexual harassment and sexual assaults and sex discrimination in their workplaces. ( Now Section 47B and 47 C of the Sex Discrimination Act )

The new dispensation recognizes that there are often systemic factors and cultural dynamics in a workplace which predispose to unlawful sexual conduct. Accordingly, it is appropriate that the employer bear a legal responsibility to minimize risks.

Under the new regime the AHRC, the body which is charged with the responsibility of enforcing this duty has laid down seven principles to be applied and instituted by employers to comply with their positive duty. These seven principles are not rules of law. However, they are likely to carry significant weight when courts are called upon to decide whether the positive duty has been properly carried out. A victim who is sexually harassed or assaulted could support their case against the employer if all, or at least most, of the AHRC principles have not been implemented.

The judgment of Justice Lee in Lehrmann v Channel 10 will also probably influence the way allegations of unlawful sexual conduct viewed and how conflicting oral evidence is appraised. Jestice Lee delivered a highly -nuanced and incisive distillation of the factual issues arising from evidence given by Lehrmann on the one hand and Higgins on the other as to what had occurred. The forensic analysis provides valuable guidance for all fact-finders as to how to assess the veracity of a sexual assault victim who is traumatized and confused after the event.

Added to this is the fact that there is an unquestionable change in the way society in general and courts in particular view the multiple harms caused by unlawful sexually-related acts. Awards of damages are increasing dramatically. This case should serve as notice and a salutary warning to all Australian employers.

Authors: Errol Price