Responding to sexual harassment complaints – Part 1
Responding to sexual harassment complaints can be a daunting task for managers and HR managers, if you get it wrong there can be very costly consequences.
In the case of Mathews v Winslow Constructors (Vic) Pty Ltd  VSC illustrates a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues.
In part 1 I will discuss outsourcing complaint investigations, in part 2 I will discuss conducting investigations internally (more details)
When you are faced with a complaint of sexual harassment the first decision you should make is should this be investigated, bit of a no brainer here, YES of course it should.
The second decision is, do we handle the matter internally or bring in an external expert.
Here is what the Fair Work Commission said about outsourcing workplace investigations, http://awpti.com.au/outsourcing-investigations/
When making the decision I recommend that you ask the following questions,
- Who will conduct the investigation?
- Do we have someone, or do I have the necessary expertise and/or experience to conduct the investigation.
- Is the nominated person or am I comfortable conducting the investigation.
- Does the nominated person, or do I have the time to conduct the investigation. This question is often overlooked, however investigations take time, time away from all your other work.
If the answer is NO to any of the questions it is recommended that you considering outsourcing the investigation.
A catch phrase that comes to mind is used by a Sydney conveyancer in radio ads,
“When all you do is conveyancing,
you get very good at it”
That statement very much applies to workplace investigations.
So you have decided to outsource the investigation, what now?
Unless you have a previous relationship with a workplace investigator it is likely that you will turn to Google where you will find a number of listings, so who to choose and why?
A Lawyer might be a good choice, after all they understand the law as it relates to workplace issues, but do they have the experience in conducting investigations, conducting investigative interviews and drafting investigation reports.
In face many law firms actually outsource investigations to professional investigators, I have worked for a number of law firms, this allows the lawyers to be able to provide advice based on the investigation report without bias or any suggestion of a conflict of interest. See http://awpti.com.au/law-firms/
A workplace investigation firm is also a good choice, however you must ensure that whoever is nominated to conduct the investigation has relevant expertise in the particular type of complaint you are dealing with.
Many workplace investigation firms employ investigators with a policing background who have experience in interviewing, evidence gathering and brief (in this case an investigation report) preparation but remember policing may be different skill set to workplace investigation.
As an employer or HR professional you are able to ‘shop around’ for the investigator you want and who you feel comfortable with and also a price you are happy to pay.
While outsourcing may take away the stress of the day to day handling of the matter, you should still maintain a level of control, this is achieved by setting out a clear ‘terms of reference’ at the start and discussing and approving the investigation plan, see http://awpti.com.au/investigations/engage-awpti/
During the course of the investigation it is also important to establish points of contact, milestones and communicate with the investigator on an on-going basis through-out the investigation to ensure that the investigation is carried out in a timely manner.
Finally the investigator should be available to disuses their final report and debrief the parties should you wish them to do so.
In part 2 I will discuss how to conduct the investigation internally.
AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations
AWPTI can assist you with by conducting misconduct investigations, the Principal Phil O’Brien is a highly experienced and skilled workplace investigator, Lawyer and former member of the NSW Police who can guide you through the minefield of sexual harassment investigations.
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory. It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator.