It seems that the news media has been awash with revelations of alleged sexual harassment by various famous, now infamous, faces. Sadly, allegations of this type of behaviour are not new to Australian workplaces, however, the current cases provide a timely reminder to think about how you should and would deal with an historical complaint of sexual harassment from an employee in your workplace.
Reasonable people denounce this type of conduct in any circumstances and as such, the immediate response may be to launch headlong into a thorough and complete investigation of the complaint. Whilst an understandable course of action, it is important to first stop and take stock of the situation before deciding how best to proceed in a way that takes account of the complainant’s circumstances, is fair to the alleged perpetrator and meets the obligations of the employer in dealing with this type of conduct.
First and foremost, it is important to provide support to the complainant. This may involve providing the assistance of an Employee Assistance Program or external counselling. In cases that may amount to criminal behaviour, it may involve assisting them in reporting the matter to the police.
Importantly, let them tell you about the resources and help they need. Listen. Not all complainants may wish their complaint to be pursued through a full investigation. Some may be registering the issue so the organisation is aware of the inappropriate behaviour and can take remedial action to ensure it doesn’t happen again. Others may wish for the matter to be fully investigated.
Working out the most appropriate next steps when faced with an historical allegation will involve weighing a number of factors.
Factors to consider
1) The age of the allegations
“Historic” is a relative term. It might be that you adopt different approaches to resolution of complaints depending on whether the allegations are say, 2-5 years old, 5 – 10 years old or older.
2) The availability of evidence
Evidence, like bad news, does not generally get better with time.
The passage of time often means that witnesses will not be available and people’s memories may have faded. Further, in cases of sexual harassment, because many victims do not report the offences to witnesses until a significant period of time has elapsed, it is often difficult to find corroborating evidence. It may be the case that, if a considerable amount of time has passed, you may not be able to conduct a procedurally fair investigation.
3) The seriousness of the allegations
Take steps to understand the specific details of the complainant’s allegations. Matters of serious or systemic misconduct will always warrant investigation no matter how old they are and despite the evidentiary issues identified above.
4) The complainant’s wishes
Investigation processes can be stressful experiences for all participants and this stress is obviously heightened in cases of alleged sexual harassment. Keep in mind too that it is not uncommon for a complainant to bring forward allegations only to later withdraw from the investigation process. At this stage it is helpful to reassure the complainant of the confidentiality and importance of the process. If the complainant withdraws from the investigation process and the allegations involve serious misconduct, the organisation may choose to continue the investigation without the complainant’s further input.
What course to take? Some possible options
If you choose to undertake an investigation, it is important that your workplace investigation is undertaken in a procedurally fair way that reasonably accommodates the complainant’s needs. There are some obvious and easy ways to do this:
- ensuring that the complainant has the opportunity to bring a support person during all interviews;
- conducting shortened interviews or interviews with multiple scheduled breaks; and
- conducting interviews by telephone or in writing if the complainant prefers.
In addition, it may be that you have to be flexible about the way in which you implement your organisations investigation policy. For example, it may not be necessary to insist that the complainant fill out a standard internal form if you already have access to the information you need to assess the complainant.
2) Restorative justice approach
In some circumstances, it may be appropriate to adopt a restorative justice approach to historic sexual harassment complainants. Through the use of facilitated discussions or mediations, a restorative justice approach is said to respond to the needs of the victim by allowing them the opportunity to convey the seriousness of the conduct, and its effect on them, to the perpetrator with the aim of changing the offender’s behaviour.
This approach will not be appropriate in all cases and can only be undertaken with an appropriately qualified mediator or facilitator and the consent of both parties (the perpetrator having admitted the behaviour).
3) Broader strategies
In cases where the approaches above are not appropriate, it may be that the organisation adopts a suite of tools in seeking to ensure respectful behaviour within the workplace. Options may include;
- ensuring that your senior executives are “walking the talk”. Your organisation’s leaders set the tone for the standard of behaviour that is acceptable in your workplace. Poor or inappropriate behaviour should not be modelled or condoned, at any level;
- training for all employees about ethical and respectful workplace conduct;
- ensuring the organisation has appropriate avenues to allow employees to report inappropriate behaviour. Sexual harassment is often not reported for any number of reasons including a power imbalance between the parties, embarrassment or shame, trauma, fear of victimisation or not being believed. Setting up anonymous reporting line, for example, alerts the organisation to alleged incidents, allows it to monitor patterns of poor behaviour and take steps to resolve apparent issues;
- ensuring that appropriate staff are trained in responding to the disclosure of sexual offences; and
- reviewing your organisation’s policies to ensure that they are sufficiently flexible to provide suitable options to parties to resolve a matter.
About Brooke Hall
Brooke Hall has significant experience in the workplace relations area, having previously worked as a lawyer for 10 years at the now Fair Work Ombudsman. Brooke brings strong communication, investigative and analytical skills in the area of dispute resolution to Worklogic. Her strong client service focus and pragmatic approach ensures clients receive practical solutions to a range of workplace issues.
Worklogic has extensive experience in triaging and resolving workplace complaints. If you would like advice on a workplace complaint, you can contact Brooke for an obligation-free discussion via email or by calling (03) 9981 6500.
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