Investigating sexual harassment complaints – failure could constitute a beach of an employer’s duty of care

The Work, Health & Safety Act imposes a responsibility (Duty of Care) on employers or persons conducting a business to take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness, this includes taking reasonable steps to eliminate and/or respond to workplace sexual harassment and bullying.

Courts have found that workplace sexual harassment and bullying can lead to the development of psychological injuries such as anxiety, stress, depression, PTSD and in the worse cases lead to suicide.

If a complaint of sexual harassment is received, failure to act could result in a finding that there has been a breach of a duty of care and can result in a claim of negligence.

Actions in negligence

What does the plaintiff (the person bring the action) have to prove in an action for negligence?

  • That there was a duty of care.
  • That the respondent/defendant/employer breached the duty of care
  • That the breach resulted in the plaintiff/employee suffering a damage


  • The damage was caused by the breach (causation)
  • That it was reasonably foreseeable that damage would occur to the plaintiff as a result of the defendant’s actions

Ensuring that you satisfy your duty of care

Do you have;

  • A policy that makes it clear that your business will not tolerate sexual harassment in the workplace and will take all reasonable steps to minimise the likelihood of it occurring?
  • Training to support your policy so that all you employees know what the behavioural expectations of the organisation are?
  • Training that ensures your employees understand what constitutes sexual harassment?
  • A trusted process by which employees who feel that they have been sexual harassment can report the matter?
  • A procedure by which reports of sexual harassment are investigated?
  • The ability to outsource sexual harassment complaints for investigation by professional and expert workplace investigators if required.
  • Training for your managers and HR staff to ensure that they are able to identify behaviours in the workplace that could lead to complaints and take pro-active steps to deal with such matters.
  • Training for your managers and HR staff to ensure that they can investigate matters of sexual harassment in a timely and professional manner?

Polices, processes and training alone will not stop sexual harassment. As an employer it is important to act quickly if complaints are made and to deal with potential misconduct in a timely and professional manner in order to minimise any fallout.

Investigating sexual harassment complaints  – Sexual harassment is highly detrimental to the victim and can cause long lasting issues including anxiety, depression and a type of PTSD.

Not having processes in place and/or doing nothing about complaints can result in costly litigation against employers. Examples of court cases and compensation payouts can be found –

Investigating sexual harassment complaints  – If you wish to engage a professional investigator AWPTI can assist you, if you would like to know how to engages us –

If you do not have training programs in place that clearly outline the behavioural expectation of your organisations, please contact us we have programs that can be tailored to your business and your budget –

If you are not sure what type of investigator to engage, this article may assist –

Sexual Harassment is your business covered? – AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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