Workplace Sexual Harassment

Workplace Sexual Harassment – During a training session on sexual harassment prevention & investigation I was asked about the reasonable steps that should be taken to prevent and/or address SH in the workplace.

1. Have a well drafted policy that defines SH and the organisation’s behavioural expectations, how to report SH & consequences for breaching the policy.

2. Make all of your staff aware of the policy, what it is & where to find it.

3. Train your staff on the policy including what is SH, the expectations, what victims can do, what witnesses should do & consequences for breaching the policy.

4. Have a trusted mechanism in place for reporting of SH, how to report & who to. Trusted means the person reporting SH will be listened to with an open mind & action will be taken.

5. Have a trusted mechanism in place for investigating SH complaints, in this case trusted means a timely & professional response/investigation to complaints.

The most important thing for your staff is to have trust in your processes.

If you need help with any of these point please contact me – phil@awpti.com.au or via www.awpti.com.au   

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

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

  

 

#sexualharassment #workplaceinvestigation #sexualharassmentinvestigation #workplacetraining #sexualharassmenttraining

Workplace policies sexual harassment investigation – A recent case before the Fair Work Commission highlighted the importance of having well written workplace polices in place.

In Jay Higgins v Coles Supermarkets Australia Pty Ltd,  Mr Higgins, a baker employed by Coles was dismissed for sending his manager sexually explicit and pornographic images.  Mr Higgins had been requested to provide a medical certificate for his injured thumb. Instead, he sent his manager a picture of a penis, followed by a picture of a thumb in a bandage next to a penis and an additional photo of a penis wrapped in a bike chain.

Commission Simpson held that the manager’s response to the first text message demonstrated he found the message funny, which led Higgins to believe he accepted the joke. After receiving the manager’s response to the second text message indicating he no longer accepted the joke, it was not disputed that Higgins ceased to send any further images.

Commissioner Simpson was not satisfied that Higgins’ conduct fell within the definition of sexual harassment in Coles’ Equal Opportunity Policy, however he found his conduct was a clear breach of Coles’ code of conduct, which required employees to treat others with dignity, courtesy and respect.

Commissioner Simpson also took a dim view of the baker’s refusal to take any responsibility for his conduct when he was giving evidence before the FWC, which resulted in Commissioner Simpson accepting Coles’ evidence that it could not hold confidence in the baker’s ability to comply with Coles’ core values under the Code.

In finding in favour of Coles, Commissioner Simpson determined that there was a valid reason for Mr Higgins  dismissal and rejected Mr Higgins argument that he had been denied procedural fairness either because he had not been made aware of the allegations before the meeting or had not be provided with an adequate opportunity to respond.

Workplace policies sexual harassment investigation – Lessons for employers

  • Your workplace polices and Code of Conduct are the law within your business, as a workplace investigator along with details of a complaint or incident they are the first thing I ask to see at the commencement of an investigation.
  • Generally any form of workplace sexual harassment, bullying and harassment or discrimination involves the alleged perpetrator showing a lack of respect for the victim.  Many polices include specific definitions but it is importance that they require employees to treat others with dignity, courtesy and respect. This makes my job much easily as the allegation/s I write are framed in reference to your policies. See more information about writing allegations
  • When investigating matters involving misconduct, showing a breach of a policy or Code of Conduct is far more straight forward than showing a breach of the Fair Work Act or sexual harassment laws.
  • When investigating matters such as sexual harassment employers are advised not to rely on cases such as this where some procedural flaws were forgiven, it is important to ensure that procedural fairness is important and should be adhered to.
  • If in doubt call in an expert – AWPTI can assist with investigations – More details and Investigation Training – More details

Workplace policies sexual harassment investigation – Other articles that may be of interest

Workplace Investigations – getting it right the first time
Procedural Fairness in workplace investigations

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

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

 

Sexual Harassment Investigation Sydney NSW/ACT

With the increasing publicity surrounding sexual harassment in Hollywood and the #MeToo campaign it may only a matter of time before there is an increase in the reporting of sexual harassment complaints in the workplace, is your organisation ready to deal with complaints?

Responding promptly and correctly is in the best interests of victims and the organisation.  For the organisation or business failing to deal with complaints can result in costly litigation, the loss of good staff, a toxic workplace culture, adverse publicity and damage to your brand image and reputation.

If you receive a complaint of sexual harassment it is vitally important that;

  1. You respond in a timely and professional manner with a thorough investigation of the complaint.
  2. Your response is fair and balanced taking into accounts the needs of all the parties.
  3. Your investigation is carried out in a professional manner taking into account the investigative procedure, procedural fairness, the rules of evidence and is legislatively compliant.

When you receive a complaint you have three choices;

  1. Conduct an internal investigation
  2. Engage an external investigator
  3. Do nothing and hope for the best (We DO NOT recommend option 3)

Sexual Harassment Investigation Sydney NSW/ACT  – Option 1 – Conducting an internal investigation

If you are going to choose this option make sure that the person conducting the investigation has the skill, experience and the time to conduct an investigation that is;

  • Fair
  • Thorough
  • Unbaised
  • Timely

It is important that your investigator understand the principals of procedural fairness, the rules of evidence and the investigation process.

An important part of your internal investigation is the documentation that will help to get the process right and ensure procedural fairness. AWPTI can assist you with our Investigation Document Toolbox and Procedural Fairness Manual.

We can also assist by training your HR professionals and managers in the investigation process – awpti.com.au/investigation-training/

Sexual Harassment Investigation Sydney NSW/ACT  – Option 1 – Engaging an external investigator

The biggest question when engaging an external investigator is, who do I call? 

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so when an external investigator is required they really don’t know what they are getting. Here are some suggestions;

A smaller investigation firm.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service, contact us for details enquiries@awpti.com.au

Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting?

Law firms
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.

Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications. Investigative skill may be an issues especially when it comes to interviewing.

Qualifications and licences required
If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and an applicable licence other states have similar provisions.

Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.

You can check is an investigator is licenced here

To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.

Insurance
It is wise to ensure that the investigator has public liability and professional indemnity insurance.

Background
The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.

How do you find an investigator?
When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/

In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connected, please feel free to send me a request).

Sexual Harassment Investigation Sydney NSW/ACT  – Option 3 – Do noting and hope for the best

DO NOT TAKE THIS OPTION. It will be damaging for all the parties involved especially the victim and could be very costly for your organisation

Sexual harassment may lead to litigation as a result of an action in negligence for personal injuries as it did in the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC where Ms Mathews was awarded 1.3 millions dollars in compensation

Sexual Harassment Investigation Sydney NSW/ACT

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationships.

Choosing the right investigator can save you time, money and worry. getting it right the first time every time is essential.

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

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/