Page 5282 - Week 16 - Thursday, 28 November 1991
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This particular clause relates to the conduct of directors, servants and agents. It talks about a director, servant or agent of the body having a particular state of mind. Then it goes on to explain how it is determined that you had that state of mind. The clause, as it stands, does not allow you the reasonable opportunity to not know that a person you had hired was going to do something. If the person was a professional, it is reasonable to assume that they were going to do the job properly if you hired them as an agent to do something.
Deeming provisions should always be subject to scrutiny. They are contrary to a person's normal and just entitlement not to be penalised for the act or omission of another. Under this clause, someone else can do something or fail to do something and, even though you reasonably did not know about that, it could still be the case, under this clause as it is, that you could be held to be guilty of doing it.
Let us say, for example, that a person hires a professional employment agency to obtain competent employees for positions in his or her business. The business person has the right to expect that the agency, being a professional agency, will conduct themselves as professionals. To assume otherwise, without evidence, would be to undermine the very foundation of business practice. However, the agency may, either mistakenly or consciously, discriminate unlawfully against candidates for employment.
Under these circumstances it is unreasonable, in the normal or natural course of business, to have to stipulate to that agency that it must comply with the Act. It is perfectly reasonable that the business owner would assume, quite reasonably, that the Act was going to be followed; that the particular person, the agent, et cetera, that they were hiring knew about that and was not going to discriminate, either mistakenly or deliberately. This is something that every reasonable person would assume.
The situation differs in the case of servants. Here, the employer should be obliged to take precautions that their employee will not break any law. That is their obligation under that particular situation. But where you hire an outside agent, you should not be able to be held liable for something the other person or agent does.
Amendment negatived.
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