Posts

Sexual Harassment law changes Sexual Harassment law changes – Respect@Work 2020 report HR Managers, employers & business owners – have you reviewed your sexual harassment policies & training in light of working from home & the 55 recommendations contained within the AHRC Respect@Work report relating to the National Sexual Harassment Survey. Read the full report […]

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/

Responding to sexual harassment complaints 2

Part 1 on this subject (more details) dealt with outsourcing investigations, in responding sexual harassment complaints 2 I will outline a procedure that can be followed if as manager or HR professional you choose to conduct the investigation internally.

Investigations are conducted internally for a number of reasons including, cost, availability and internal processes and procedures.

This article provides an overview of how to conduct an internal investigation. Please note it is an overview only, conducting an investigation is a complex and often time consuming matter requiring a high level of expertise.

There are many procedural steps during an investigation that are not included here for the purpose of brevity.

Should you wish a complete guide for conducting workplace investigations I have created a comprehensive investigation toolbox contains 35 documents (including template letters, interview plans, sample reports) and an Investigation Interview Manual. http://awpti.com.au/investigation-toolbox/

Complaints of sexual harassment

Generally complaints will be made either in person verbally or in writing, most commonly via email.

Step 1.

If the complaint is made in person, the first step is to obtain as much detail as possible from the complainant at the time of reporting.

If the complaint is made in writing or email, I recommend that you review the complaint and any other documentation, print it off and Identify and highlight areas where further information is required.

Identify areas where clarification of information is required, questions such as the who, what, what did they do, when, where, what was said, was anyone else present, if so who?

Step 2

Once you have reviewed the complaint it will be necessary to formally interview the complainant. 

This will require you to draft an interview plan that should include questions designed to have the complainant clarify when they meant when they used descriptive words such as sexually harassed, bullying, harassing, intimidated etc

You should also draft questions to have the complainant clarify words they may have used such as touched, looked, leered, yelled, shouted, angry etc and questions to ascertain the nature of the relationship of the parties prior to and during the incidents complained about

Complainants often use emotive language you must be sure what they actually mean.

You do not need to write out every question you are going to ask, the interview should be organic and led by the answers you receive to the key points you have identified.

Step 3

Interview the complainant. 

Investigative interviewing is a skill in itself and is far too detailed to go into here.  I have produced an interview manual that has been designed as a practical guide for workplace investigation interviewing. http://awpti.com.au/investigation-interview-manual/

The manual will assist you in preparing, conducting and reviewing the interview upon completion.

During the complainant interview you should be seeking as much further information as possible and the answers to the questions you have previously identified, clarifying as much information as possible

Step 4

Review all of the information (evidence) from the complainant.

Draw up a list of witnesses and potential witnesses. Witness will tend to support or refute the information provided by the complainant.

Draft the interview as you did for the complainant

Step 5

Interview the witnesses.

You should seek to obtain information that either corroborates or refute the complainant information.

Witnesses may also provide further information that leads to new avenues of enquiry.

Step 6

Review all the information you have. Identify any gaps in the information and what if any further information is required.

If warranted, draft a letter of allegation to be provided to the person subject of the complaint, the respondent.

The letter of allegation provided to the respondent must contain sufficient detail of the complaint to allow them to respond. This is a component of procedural fairness.

Step 7

Interview the respondent, allow them the opportunity to respond to the allegations and provide their side of the event/s. This is also a component of procedural fairness.

During the interview the respondent may nominate additional witnesses, these witnesses should be interviewed in the same manner as witnesses nominated by the complainant.

Step 8

Review and analyse all the evidence and make a finding as to whether the allegations have been substantiated or not or are unable to be substantiated.

Step 9

Report your findings in a clear manner.

Step 10

Advise the parties of the outcome of the investigation.

As I mentioned at the start, conducting an investigation is a complex and often time consuming matter. The AWPTI Investigation toolbox is a highly recommended resource for you to have if you intend to conduct investigations internally. http://awpti.com.au/investigation-toolbox/

If is important to remember, if you are unsure consider calling in an expert. http://awpti.com.au/investigations/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

 

 

 

 

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 [2015] 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,

  1. Who will conduct the investigation?
  2. Do we have someone, or do I have the necessary expertise and/or experience to conduct the investigation.
  3. Is the nominated person or am I comfortable conducting the investigation.
  4. 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

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

responding sexual harassment complaints

 

 

Exit interview – complaints of bullying,
harassment and sexual harassment

 

An employee tells you during an exit interview that they were bullied, harassed or sexually harassed and that is the reason they are leaving the company, they name the alleged perpetrator but refuse to provide details as they are leaving and say that they want to put the bad experience behind them

What can or should you do?

This is a difficult situation to be faced as a HR professional or manager when conducting an exit interview

Your choice could be;

Do nothing, after all you have no details and no evidence. But remember, the easy way out could come back and bite you later.

Start an investigation, but where to start, if you speak to the alleged perpetrator how will you respond when they ask the usually, what exactly is it claimed that I did, when did this happen.

To conduct an effective investigation you will need to establish lines of enquiry;
• What happened – full details including what was said
• When and where
• Are there any witnesses
• Is there any other evidence

Without further details it is very difficult to conduct an effective investigation, remember you can’t set up a desk in the corner with a sign that reads ‘complain about Mr X here’

Keep records, you may be able to follow up on some information in an informal manner

If you don’t have one establish reporting mechanism for matters of misconduct, bullying, harassment, sexual harassment etc, this will encourage employees to have faith in the process that if they make a complaint it will be addressed.

Ensure that complaints are dealt with in a confidential, timely and professional manner, this will further encourage employees to have faith in the process
Conduct training with purpose;

  • Clearly outline employees behavioural expectations and responsibilities
  • Clearly define what is bullying, harassment, sexual harassment etc and how it will be dealt with by the company
  • Reinforce that the company has a reporting and investigation mechanism to deal with complaints in a confidential, timely and professional manner
  • Provide guidance for employees who feel that they are being bullied, harassed or sexually harassed

If you do not have effective training and investigation processes in place please contact AWPTI so that we can assist you.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

enquiries@awpti.com.au