Are employers liable for the action or inaction of their employees?

By Robby Magyar 

The High Court of Australia has refused to allow an appeal for the Landmark Roofing Pty Ltd v SafeWork NSW decision of the NSW Court of Criminal Appeal, where claims that an employer could not be held liable for the deliberate disobedience and failures of a supervisor resulting in the death of a worker, were rejected.  

The apprentice tragically lost their life after falling six metres through a skylight whilst working unsecured on a roof, despite their supervisor being directed that same morning to ensure all workers were properly secured when undertaking such work.  

At trial, the employer contended that the incident occurred due to the deliberate disregard of the supervisor to follow safety procedures and as a result, that vicarious liability should not apply in these circumstances as the employer had no way of foreseeing the failure of the supervisor to comply with a health and safety direction.  

The Court rejected this on the basis that s244 of the Work Health and Safety Act 2011 (NSW) renders employers liable for the action and inaction of subordinates when acting within the actual or apparent scope of their employment duties, even where the failure of the employee was not foreseeable. This was upheld in the Court of Criminal Appeal.  

The employer was subsequently fined $400,000 and attempts to appeal were not successful.  

This case is a terrifying example of how dangerous workplace incidents can be, and that an employer can be held vicariously liable for the actions of their employees even where they have failed to follow a direction.  

Ensuring your WHS policies and procedures are in place and are as robust as possible is essential, and HR Assured is here to help create a safe working culture with our end-to-end WHS solution.  

Our team is available to conduct Health and Safety audits, initiate WHS management software, draft WHS policies and procedures and answer your questions through our 24/7 Telephone Advisory Service.  

Not an HR Assured client and need advice about vicarious liability? The team at HR Assured can support your business on a range of workplace matters. Contact us today to arrange a confidential, no-obligation chat. 

Robby Magyar is a Workplace Relations Consultant at FCB and HR Assured who relishes the opportunity to assist businesses in the best-practice approach to managing employees and compliance concerns. He has a particular interest in making employment law and human resources digestible for our clients.