The average reading time for this Alert is four minutes.
Russell Kennedy recently acted successfully for ANZCA to strike out a claim for discrimination and bullying raised by a trainee. Principal, Emma Turner, and Associate, Gareth Kerr, obtained judgement for the College, in a decision that helped clarify the responsibilities of medical colleges for the actions of their fellows in the workplace – and clarifying circumstances when relevant provisions of equal opportunity and anti-discrimination laws may apply.
VCAT has held that a medical college (the college), responsible for training that leads to Fellowship and registration of anesthetists, was not vicariously liable for conduct that occurred whilst the trainee of the college was working at hospitals in Australia and New Zealand.
It was also found, amongst other things, that a claim of primary liability under the Equal Opportunity Act 2010 (Vic) (the Act) could not be substantiated, as no reasonable inference could be drawn that, before the trainee was removed from the training program, the college was aware that the trainee had alleged the Act had been contravened or that the trainee had claimed to have a disability which required the college to make reasonable adjustments.
The trainee in TIA v Australian and New Zealand College of Anaesthetists (Human Rights)  VCAT 1053 alleged that the college was liable under the Act for discrimination, failing to make reasonable adjustments for her disability, as well as other conduct such as sexual harassment.
The trainee alleged that the college was vicariously liable for discrimination which was perpetrated against her while she was working in hospitals in New Zealand and Australia and that the college was primarily liable for bullying, discrimination and harassment by removing the trainee from the training program.
The trainee alleged that the conduct, of which she complained, constituted “significant discrimination and constructive dismissal” and that it occurred in the course of her employment with the hospitals and that the college as the training and education provider should be held vicariously liable for the conduct alleged.
The college in response filed an application to have the trainee’s claims struck out pursuant to section 75 of the VCAT Act.
The Tribunal found that the college could not be held to be vicariously liable for conduct which occurred in New Zealand as the trainee had brought her claim under the Equal Opportunity Act 2010 in Victoria; an Act which does not apply in NZ. The Tribunal held that a person cannot contravene a statute in a country where that statute does not operate.
The Tribunal further held that the college could only be found to be vicariously liable if the conduct complained of by the trainee was by either its agents or employees. The Tribunal found that the doctors at the Australian hospitals were employees of the hospitals and not the college and that the doctors could not be considered as agents of the college by merely being a fellow or member of the college. It was found that the hospitals do not have any legal relationship or agreement with the college other than their accreditation as training sites. It could not be said that if the fellow or member simply performed functions for which they were employed to do, without more, then they could not be acting as an agent of the college.
The Tribunal found, that being the case, the college was not responsible for any conduct as alleged at an interstate hospital where the trainee worked, as none of the persons she made the allegations against were agents of the college
The Tribunal further found that there could be no reasonable inference that the college discriminated against the trainee due to a presumed or actual disability, or that the college was required to provide reasonable adjustments due to a disability but did not. The Tribunal found that no reasonable inference could be drawn that the people against whom the trainee made the allegations, played a role in her dismissal. It also found that when the trainee was removed from the training program, the college was not aware that the trainee had a disability which required reasonable adjustments. The trainee had not notified the college of her disability.
The Tribunal considered that, if it was necessary to apply section 110 of the Act (which provides that a principal is not vicariously liable for a contravention of the Act by an agent if the principal proves, on the balance of probabilities, that the principal took reasonable precautions to prevent the agent contravening this Act), that the college would have been able to avail itself of section 110 in its defence, because it had maintained relevant policies and practices designed to prevent contraventions of the Act by employees or agents.
The Tribunal considered that in all the circumstances it was appropriate to exercise it’s discretion to dismiss the proceedings
This decision will reassure medical colleges that they are not automatically liable for the actions of their Fellows/supervisors for all actions taken in the workplace. It also highlights the need for colleges to maintain contemporary policies and procedures to deal with bullying, discrimination and sexual harassment.
How we can help
For further information on vicarious liability within the health sector, please contact Michael Gorton AM or Emma Turner of our expert Health Law team.
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