Workplace sexual harassment - employer responsibility is about to get more difficult

What do employees need to do?

Business owners, Directors and Senior Executives, have a legal obligation to ensure a safe workplace, as mentioned in our previous article. This includes a psychologically safe workplace, which by definition, would be a workplace without harassment. Recent announcements from the Federal Government mean that workplace obligations, which are already substantial, are set to increase.

Although sexual harassment is only one form workplace harassment can take, it is however often the most heinous. The Australian Human Rights Commission has advised that research indicates that 39% of women and 26% of men have experienced sexual harassment in the workplace.

Importantly, the Federal Government have announced an intention to include sexual harassment in the definition of serious misconduct enabling employers to take the most severe disciplinary action, termination of employment.  Although this may appear to be an easy solution for employers, it is far from it.

In line with common employment relations principles, employers will still bear the onus of proving the sexual harassment took place, and that it is of a nature which justifies termination of employment.

Sexual Harassment, like all forms of workplace conduct, occurs on a continuum. Where the line will be drawn about what conduct will justify termination of employment will no doubt take time, and a number of decisions of the Fair Work Commission, to be established with any certainty.

Employers will need to update their workplace conduct and disciplinary policies to accommodate the proposed changes once they occur.  In the meantime, prudent employers will also be running refresher training for their employees, both as a means of ensuring all employees understand their rights and obligations, but also as a means of seeking to meet their vicarious liability obligations.

It is abundantly clear that the changes suggested by the Federal Government do not lessen an employer’s current obligation to ensure that any process they implement to investigate allegations of sexual harassment, in or connected to the workplace, delivers natural justice to all parties, and delivers sound and reliable findings. Poor processes will undermine any disciplinary action an employer initiates. Poor processes will also undermine employee trust in the employer to properly address complaints of sexual harassment. Both the complainant and the respondent must be treated fairly in the process to secure a reliable and actionable outcome.

Investigating workplace sexual harassment is complex, and an investigation which fails to protect the psychological safety of all parties creates further risk for employers. Selecting the right workplace investigator for this type of investigation is therefore very important. Employers not only need an investigator who is very experienced, but also one who is empathetic with a clear understanding of procedural fairness and the legal definition of sexual harassment.  

One of the other announced changes is to extend the period of time in which an employee can make a complaint to 24 months. This longer period is intended to more meaningfully reflect the time necessary for many victims to feel ready to come forward and make a complaint. 

Although this is absolutely reasonable to provide complainants with sufficient time to make their complaint, it does add to the complexities in investigating sexual harassment in the workplace. Employers do not have the same resources as police to locate potential witnesses, so employees who may have relevant information but have moved on, may no longer be available to provide evidence. Furthermore, documentation which may have existed at the time of the alleged conduct, may no longer be locatable. Co-workers are also often reluctant to ‘get involved’, particularly if some time has passed since the alleged events. As a result, an experienced and skilled investigator is necessary to garner co-operation and gather the best evidence available.  

So, the question is then who is the right investigator?

It is someone who is experienced and skilled in workplace harassment investigations, with particular emphasis on sexual harassment investigations, and who has a clear and demonstrable understanding of the surrounding law. It is someone who can conduct the investigation with empathy and professionalism.

Such an investigator must have an unimpeachable reputation for fairness to all parties.

If you need assistance in understanding your obligations for sexual harassment in the workplace, updating your policies or training your employees, or need to engage the right investigator we are here to assist you.

Please contact our HR Consulting division via the form below or on 1300 200 725.

 

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Author: Cheryl-Anne Laird

 

Published: 20/4/2021

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