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/

 

 

Workplace Sexual Harassment Training – As a HR professional, manager or business owner what can you do if you think that there may be a problem but you don’t have any actual complaints or any evidence on which to base an investigation or take action?

The answer may be training and this applies to bullying, harassment, discrimination and any other forms of misconduct.

Training is an effective way of putting your staff on notice that poor behaviour will not tolerated in your organisation, but what needs to be included?

A clear opening message: Often as part of this sort of workshop/session during my introduction I will say word to effect;

“In addition to being a trainer, I am a workplace investigator, I spend a lot of time investigating complaints of sexual harassment/bullying………… and part of the reason for this session is to let you know about what not to do, unless of course you want to be sitting opposite me or someone like me being interviewed.”

I find this works quite well and gets a lot of positive feedback from HR managers.

A clear definition about what is and what is not sexual harassment: It is important that your employees understand what constitutes sexual harassment or bullying etc and how those boundaries are applicable to your business/organisation and how they relate to your policies and Code of Conduct

A section on the myths surrounding sexual harassment: This section allows your employees to discuss and comment about many commonly held myths about what is and what is not appropriate behaviour. This article provides more details

A section on consequences: Your training program should include a section clearly detailing the potential consequences for breaching your policies and behaving in a sexually harassing manner.

A section of what you should do if you are a victim or a witness: It is important that victims know that they should and can report the matter.  This means ensuring that you have a trusted and responsive reporting mechanism and/or HR department. It is also important for witnesses to know that they should not just stand by and do nothing and for witnesses to image if it were them.

Legal responsibilities: This final section should cover the law and cases that are relevant to illustrate the potential and actual legal consequences of sexual harassment.

Workplace Sexual Harassment Training  – Other articles that may be of interest

Stopping workplace bullying harassment sexual harassment
Sexual harassment – duty of care

Workplace Sexual Harassment Training  – AWPTI can provide interesting and engaging training programs designed to assist you to inform and manage your employees. We have a specialised workplace sexual harassment training program. More details here

We also have an understanding sexual harassment manual available for purchase, for details or to order

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/

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 phil@awpti.com.au

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.

Sexual Harassment Training – it is apparent that the issue of sexual harassment in the workplace is not going away.

As an employer what are you duties and responsibilities?

A recent article suggested that sexual harassment should be recognised as a workplace safety issue more details here

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 and the potential for costly litigation and large compensation payouts, for more details

To ensure that you satisfy your Duty of Care it is strongly recommended that you must 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 professional and timely 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?

Many employers are faced with questions around, what sort of training, how will it be delivered, who will deliver it.

AWPTI can assist you in a number of ways;

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/
http://awpti.com.au/hr-products/

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

Plus

  • 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 – http://awpti.com.au/sexual-harassment-investigation/

Investigating sexual harassment complaints  – If you wish to engage a professional investigator AWPTI can assist you, http://awpti.com.au/investigations/ if you would like to know how to engages us – http://awpti.com.au/investigations/engage-awpti/

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 – http://awpti.com.au/training/

If you are not sure what type of investigator to engage, this article may assist – http://awpti.com.au/choosing-a-workplace-investigator/

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

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/

Workplace Investigation Terminations Unfair dismissal

The recent decision of Jay Higgins Coles Supermarkets Australia Pty Ltd T/A Coles at the Fair Work Commission highlighted the importance for employers about being clear about the reason for the dismissal.

In this matter, Coles submitted that the explicit text messages sent by Mr Higgins resulted in a serious breach of the Code and Equal Opportunity Policy (EO Policy). Specifically, that by sending the explicit text messages to his supervisor Mr Lacey, Mr Higgins engaged in behaviour that was considered to be harassment due to its offensive and sexual nature. Coles submitted this resulted in a serious breach of his duty to treat everyone with dignity, courtesy and respect.

Mr Higgins submitted that when taking into account the context in which the text messages were sent, it could not be satisfied that he engaged in conduct amounting to sexual harassment towards Mr Lacey. Mr Higgins relied on the section of the Equal Opportunity Policy that states as follows:

“Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment, as long as the interaction is consensual, welcome or reciprocated.”

Mr Higgins submitted that he and Mr Lacey had a personal friendship outside of work, and that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours. Mr Higgins submitted he had sent messages of a similar nature to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins submitted that the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. Mr Higgins also submitted that Mr Lacey’s response to the first text message on 5 September encouraged him to send further text messages.

When the manager responded negatively to the image of a penis in a bike chain, Mr Higgins did not sent any further images.

As a result, the commissioner found the conduct did not fall within Coles’ definition of sexual harassment, which excluded behaviour based on friendship as long as it was “consensual, welcome or reciprocated”.

But he found sending such explicit images was “clearly conduct inconsistent with the requirement of the code to treat others with dignity, courtesy and respect”.

Together with Mr Higgins’ lack of contrition and aggressive comments to his supervisor after he was warned over the images, he concluded Coles had a valid reason for dismissal and found the dismissal was not unfair.

Commissioner Simpson held that “The fact that Mr Higgins refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles’ submission that it cannot reasonably hold confidence in Mr Higgins’ ability to comply with its core values. I am satisfied Mr Higgin’s misconduct was serious.”

In this case it was found that Coles had a valid reason for the dismissal other than the initially alleged sexual harassment. Had Cole gone alone with the sexual harassment allegation the outcome may have been different.

Lesson for employers

  • Be careful when investigating matters such as sexual harassment that the behaviour is consistent with the definition of sexual harassment.
  • Be careful that organisational policies reflect the accepted or legislated definition of misconduct, bullying, harassment and sexual harassment.
  • If you are unsure call in an expert – http://awpti.com.au/investigations/
  • Ensure that all employees undertake training in what is and what is not misconduct, bullying, harassment and sexual harassment – http://awpti.com.au/employee-training/

Workplace Investigation Terminations Unfair dismissal

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/