Workplace employment relationships “akin to employment” can be found on an almost daily basis as workplaces continue to evolve. Some examples include:
- Labour hire;
- Independent contractors; and
- Volunteers.
The question the High Court was asked in Bird v DP (a pseudonym) [2024] HCA 41 (Bird v DP) was whether a worker who had a relationship “akin to employment” would hold the organisation vicariously liable.
What is Vicarious Liability?
Vicarious liability is a legal principle where an Employer is held liable for the wrongful acts or omissions of an employee even if the specific act or omission was unknown to the person being held liable at the time it occurred. This form of liability does not depend on proof of any actual wrongdoing by the party held vicariously responsible, making it a form of strict liability.
High Court Case of Bird v DP
In November 2024, the High Court of Australia handed down a pivotal ruling in Bird v DP, a decision with significant implications for how organisations manage risk and responsibility, particularly in the context of working with individuals who are not formal employees.
In doing so, the Court resisted the global trend of expanding institutional liability to cover the actions of individuals outside traditional employment relationships.
The case involved the Catholic Diocese of Ballarat, which was sued for the sexual abuse of a child by an assistant parish priest. Critically, the priest was not a legal employee of the Diocese. The High Court, by majority, ruled that the Diocese could not be held vicariously liable because there was no formal employment relationship and only “akin to employment”.
The Court reaffirmed a strict approach to vicarious liability: only individuals in legally recognised employment relationships fall within its scope. Attempts to extend liability to individuals in roles “akin to employment” were rejected.
Which aligns with the strict interpretation of aligns with the strict interpretation of employment relationships seen in ZG Operations Australia Pty Ltd v Jamsek and CFMMEU v Personnel Contracting Pty Ltd.
Why It Matters for HR and People & Culture Teams
1. Clarification of Vicarious Liability Scope
The High Court ruling confirms that organisations are arguably not vicariously liable for the actions of contractors, volunteers, or labour hire staff—even if their roles appear functionally similar to employees.
Bird v DP should not be applied wholly in all workforces but there is an argument to release vicarious liability.
There are still other areas of liability that cannot be escaped such as Workplace Health and Safety.
For HR, this narrows potential legal exposure but also underscores the importance of clearly defining and documenting working relationships.
2. Greater Emphasis on Internal Controls and Documents
Even though vicarious liability is limited, organisations still face reputational and operational risks from the actions of non-employees. This reinforces the need for:
- Thorough onboarding processes for contractors and volunteers,
- Clear behavioural standards and safeguarding policies,
- Robust complaint and reporting channels;
- Proper documents drafted including volunteer agreements, contractor agreements and labour hire agreements.
Key Takeaways for HR and People and Culture Teams
- Review how your organisation engages non-employees (akin to employment) —clarify status, agreements, and risk controls.
- Reassess policies and training programs for volunteers, contractors, and other non-staff roles.
- Stay alert to legislative changes that could broaden organisational responsibilities.
- Strengthen your internal culture of safety and accountability, regardless of legal definitions.
Our Employment Lawyers at South Geldard Lawyers have essential expertise in preventing these issues occurring in the first place and helping with the legal issues when they do occur. Feel free to reach out on (07) 4936 9100 or via email to Jonathan Mamaril, Director at jmamaril@southgeldard.com.au. All Employers receive an obligation free consultation.
