According to the Australian Human Rights Commission Act 1986, it is imperative that the licensee protect the staff from misbehavior or misconduct by fellow employees or clients arising at the workplace.
According to the Fair Work Act 2009 there are provisions to protect people from discrimination and unfair treatment at workplace. It is the responsibility of the licensee to ensure fair work practices and appropriate code of conduct while dealing with the employees and staff at the workplace. Fair Work Act 2009 sets out the responsibility in both federal and state laws. (Business.gov.au, 2017)
As an employer it is the sole responsibility of the licensee of the restaurant to ensure that no discrimination, harassment or bullying from occurring in the workplace. Harassment is a misconduct that humiliates and intimidates the staff as well as clients thus hampering the image of the restaurant by having a negative impact on the productivity and affecting the goodwill of the restaurant. As a licensee, the main emphasis is on taking into account the legal risks associated with harassment and bullying and thus taking remedial measures in order to minimize the potential liability.
There is a right for all the employees to work in an environment which is free from harassment. Therefore, as a licensee, the primary measure to adopt will be to prevent the entry of clients like Larry who have a history of misbehaving with the staff and other clientele. (Mondaq, 2017)
Australian anti-discrimination law clearly states that if any harassment takes place in the office premises then employer would be held responsible for it. In order to minimize the risk of legal action as a result of this, employers must play an important role in implementing anti-discrimination policies. Another provision under the anti-discrimination law will be making provisions to check on and prevent instances of publicly insulting clients and employees of the restaurant. In addition, under discrimination law, it is unlawful to treat a person less favorably which includes incidents of harassment or bullying. It is therefore my duty and legal obligation to prevent clients like Larry from behaving in an unfavorable manner while dealing with the staff or other clients of the restaurant. (NSW, 2017)
Bullying is an unreasonable behaviour by any individual towards a worker which would put the life of the worker in danger. This is mentioned in Fair Work AAmendment Act 2013. Therefore, as a licensee I would proactively address the incidents of hostile behaviour occurring on the part of clients like Larry that may have offended or humiliated the staff of my restaurant or the clients. Under occupational health and safety legislation, employers need to comply with all measures that promote safeguarding the employees and staff in the workplace. As a result of this duty, it is my duty and legal obligation to reduce the incidents of bullying and misconduct by clients in the restaurant.
2. As the licensee I am liable for Larry’s injuries as per Negligence tort law. The tort of negligence is a legal action which can be undertaken by Larry to whom the restaurant licensee owed a duty of care. Since it is the legal obligation of the licensee to provide a duty of care, hence he is liable when a duty to take care is owed and a breach of that duty occur which results in damage or injury.
Negligence tort comprises of three elements, which has to be proved if a person is to be held liable for negligence. All those three elements are discussed below:
Vicarious liability means the imposition of liability on one person which may include the employer or licensee on account of negligence of other to whom the licensee has entrusted upon the performance of some task on their behalf. (Lawman, 2017)
Occupiers' liability is associated with the duty of care which is the legal obligation and duty of those who are occupants of real property, through ownership or lease to visitors. It is associated with the liability that arises on account of accidents that may be caused by defective or dangerous condition of the premises. (In this case the faulty, rusty lock of the toilet door, and the wall that collapsed causing injuring to the client.) Occupier's Liability Act 1957 imposes upon the licensee a duty of care. Under this Australian Law, the scope of the duty of care depends on the following:
The magnitude of the damage, or injury as observed by the licensee
The degree of possibility of the incidents’ occurrence
The expenses and inconvenience of taking the necessary precautions in favor of the injured person
The obviousness of the injury caused in the premises
The type of occupier
The degree of the licensee’s knowledge
WRONGS ACT 1958 - SECT 43
Wrongs Act 1958 includes tribunal, and a legal right to claim for damages or injuries caused. The damages includes compensation for the victim in monetary terms. The damage may entail a damage to property or economic loss. The injury refers to physical or psychological injuries to the victim in the licensee’s premises, the aggravation, acceleration or recurrence of an injury or disease as well as the negligence on the part of the licensee in providing reasonable care to the victim. (Austii, 2017)
Austii, 2017. Austii. [Online] Available at: https://www.austlii.edu.au/au/legis/vic/consol_act/wa1958111/s43.html [Accessed 17th May 2017].
Business.gov.au, 2017. business.gov.au. [Online] Available at: https://www.business.gov.au/Info/Run/Workplace-health-and-safety [Accessed 17th May 2017].
Lawman, N., 2017. netlawman.com.au. [Online] Available at: https://www.netlawman.com.au/ia/vicarious-liability-australia [Accessed 17th May 2017].
Mondaq,2017.mondaq.com.[Online]Available at:https://www.mondaq.com/australia/x/419584/Consumer+Law/NSW+consumers+warned+to+be+vigilant+as+new+personal+injury+advertising+regulations+take+effect [Accessed 17th May 2017].
NSW, 2017. The Law of Torts. Negligence, 1(1), p. 25.
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