A recent decision of the Queensland Industrial Relations Commission (QIRC) has sent a clear message that employers must do more than “set and forget” training to be able to secure a defence against vicarious liability for employees’ unlawful conduct.
In the decision of Loquias v The Star Entertainment Group and John Dwyer [2026] QIRC 023, the QIRC was required to consider a complainant’s claim that she had been sexually harassed and assaulted by another employee (a Gaming Area Manager) of The Star Entertainment Group (the Employer).
The alleged conduct broadly fell under two categories – a pattern of conduct that had taken place in the workplace between September 2020 and March 2021, as well as a series of incidents that occurred at a social gathering on 5 March 2021.
The pattern of conduct in the workplace included:
The conduct at the social gathering included:
The QIRC was satisfied that, under both categories, the employee had engaged in sexual harassment of the complainant in contravention of the Anti-Discrimination Act 1991 (Qld) (the AD Act).
As to the question of vicarious liability, the QIRC found that the Employer was vicariously liable only for the pattern of conduct that had occurred in the workplace.
The Employer was found to be not vicariously liable for the conduct that had occurred at the social gathering.This was because it was entirely unconnected to work and, according to the QIRC, there needed to be something more than the fact that they knew each other because of work.
Before the QIRC, the Employer argued that it had taken reasonable steps to prevent the employee from contravening the AD Act and it therefore should not be held vicariously liable for the employee’s conduct. Specifically, it had relevant policies in place that dealt with sexual harassment and also required employees to participate in training modules every two years.
The QIRC did not have any issue with the content of the training provided by the Employer – it agreed with the Employer that training is intended to raise awareness, not to make employees subject-matter experts. Rather, the QIRC’s concerns were in relation to the manner in which the employees undertook the training.
The evidence before the QIRC was that employees were required to complete the online training modules at the same time as conducting work duties. As a result, many managers didn’t properly read through the material and often skipped through it. In the past, managers were assigned time to complete the training in an office, separate to their ordinary duties.
According to the QIRC, the employee’s unlawful conduct could have been prevented if he was able to complete the training away from his work duties so that he could actually focus on the content. Instead, he could not genuinely engage with the training because he was required to attend to his duties at the same time. This failure by the Employer was held to be “below basic training expectations to the extent that it cannot be considered reasonable”.
Further to this, the QIRC held that “reasonable steps” should be considered in the context of the situation. In this particular case, the employee had previously received a written warning for breaching its sexual harassment policies.
Against this background, the QIRC stated that steps should have been taken to ensure that this conduct was not repeated. Specifically, the QIRC stated that the unlawful conduct could have been prevented if the Employer required the employee to complete annual training rather than the standard biennial training.
The Employer had also submitted that there was nothing it could have done to prevent the conduct as the employee knew that the behaviour was wrong but chose to engage in it anyway. It relied on the employee’s comment to the complainant at the social gathering that “we’re not at work now, I can do whatever I want”.
The QIRC did not accept this submission, stating at [171] that “If it were simply a question of knowledge there would be no requirement for ongoing training. Regular training is required to ensure that employees have their understanding of the requirements refreshed on a consistent basis.”
The QIRC therefore found the Employer and the employee jointly and severally liable for the pattern of sexual harassment in the workplace. It found the employee solely liable for the sexual harassment at the social gathering. It attributed 40% of the complainant’s loss and damage to the pattern of sexual harassment in the workplace and 60% of her loss and damage to the conduct at the social gathering.
It is clear from this decision that a successful defence against vicarious liability requires an employer to do more than the standard “set and forget” or “tick and flick” training. Employers must ensure that employees are given a genuine opportunity to participate and engage in training on a regular basis.
In addition to this, it is critical that employers are not only proactive in preventing sexual harassmentand discrimination but also reactive in addressing incidents and taking additional steps to ensure unacceptable behaviour is not repeated.
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