THE CASE FOR COMPLIANCE TRAINING WITHOUT A COMPONENT OF FORMAL ASSESSMENT
The S.A.F.E. Files train and educate employees about their legal obligations in the workplace.
How is compliance training effective without a component of assessment?
Effective compliance training must be clear, comprehensive, delivered regularly and easy to understand. These are the matters courts have regard to when determining whether an employer’s systems for training its employees encompass all that is reasonably practicable to prevent unlawful conduct such as sexual harassment.
It is superficially attractive to think that adding assessment to compliance training will strengthen an employer’s position in respect of making out this defence. However, the legal position is that an assessment tool has no bearing on this issue. Rather, the key issues are the content of the training and whether the training is delivered regularly.
The nature of assessment in compliance training was referred to in a recent sexual harassment case before the Federal Court of Australia, Richardson v Oracle. In that case, Justice Buchanan rejected criticism of the company’s online compliance training program on the basis that a user’s true understanding could be manipulated through yes/no answers.
Justice Buchanan rejected the notion that the employee “required the discipline of a classroom”. In considering whether the company had taken all reasonable steps to prevent the alleged sexual harassment, he had regard to the content of the training, the regularity of training (including refresher training) and whether the training was capable of being understood.
In many respects, incorporating an assessment tool into an employer’s compliance training may present the employer with an unnecessary risk.
Consider a company that is being sued because one of its employees engaged in sexual harassment in circumstances where that particular employee had only scored 80% in their appropriate workplace behaviour training assessment. Questions a court might be asked to consider include whether this meant the employee didn’t understand 20% of the training? And if so, what extra steps did the company take to further train the employee in the aspects they didn’t understand?
This may leave a large gap in the compliance training.
At this stage of the development of the law, the components of taking “all reasonable steps” include having a policy, promulgating this policy to all employees and regularly training employees in the policy and the law. It is vital to focus on the content and ensure this meets the legal compliance requirements.
Employers can rely on The S.A.F.E. Files to ensure that the content meets the required standard and that it will be updated regularly as the law changes and evolves.
Together with properly drafted policies which are properly promulgated throughout the organisation, employers who rely on The S.A.F.E. Files as the delivery method of its compliance training without an assessment tool will be able to confidently defend an allegation of vicarious liability.
Lander & Rogers
Lander & Rogers is a leading Australian law firm operating nationally from Melbourne and Sydney. The firm comprises 56 partners and a further 350 lawyers and staff.
We work with Australian and international companies, private equity firms, government departments and agencies, superannuation fund trustees and individuals delivering an integrated legal service offering.
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