Sexual harassment investigations proceed with caution – In the current climate it is very important that in the case of complaints of sexual harassment that employers proceed with caution and ensure that they conduct rigorous investigation before taking action.
Evidence should be carefully gathered, analysed and weighted up as to whether is meets the required standard of on the balance or probabilities.
Recently at the Fair Work Commission in the case of Wilson v Anglo Coal the applicant Mr Wilson lodged an unfair dismissal application. In this matter a person described as Person A resigned and made four separate allegations of improper conduct against Wilson. Person A was first female trainee employed at the mine and was 19 years old. The allegations of sexual harassment allegedly breached the ‘Anglo American Equal Employment Opportunity and Anti-Bullying Policy’ and Guiding Values. The applicant Wilson was dismissed after an investigation.
The Commission considered the test in Briginshaw and held that it was not satisfied that there was clear and cogent proof that supported the allegations. Commissioner Spencer held that a valid reason for termination not made out and found the dismissal to be harsh, unjust and unreasonable. The Commissioner ordered reinstatement and continuity of employment and service.
During the course of the investigation a number of witnesses were interview many however they were only asked 7 questions that were provided to the commission via hand written notes made by the interviewer a HR Manager. (Wilson v Anglo Coal at ). Without making too much comment on the investigation process, anytime I have interviewed witnessed during sexual harassment investigations I have asked many more than 7 questions and the interviews have been audio recorded with transcripts draw up.
Sexual harassment investigations – Lesson for employers
* Always ensure that you have conducted a thorough investigation
* Ensure that your evidence supports the allegation before making a final decision on the matter.
* If in doubt get advice.
Sexual harassment investigations – How can AWPTI help
Conducting sexual harassment investigations are complex matters requiring a high level of investigative skill that should not be underestimated. We have 5 options that may assist you, we can;
1. Conduct the entire investigation for you, that including all facets of the investigation such as conducting interviews and analysing the evidence, details here
2. Provide you with comprehensive workplace investigation training, we conduct 1, 2 & 3 day courses to suit your needs, details here
3. Provide you with peer mentoring a guide you through the investigation, details here
4. Conduct an investigation review during the investigation including a review of your letters of allegation details here
5. We can supply you with our Workplace Investigation Document Toolbox that contains 40 documents and manuals including a template letter of allegation, more details and to order here
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
The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
You can contact me on 02 9674 4279 or firstname.lastname@example.org
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 issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.
This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory. It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators