Nia Elovaris, Senior Consultant
How an employer responds to a complaint of sexual harassment is crucial in determining the course of events. Below are the key steps which you should follow.
1. Triage the complaint
Based on the initial report or complaint, conduct a prompt assessment of the complaint, based on factors such as:
- What is the conduct complained of
- How serious is the conduct
- Where and when did it occur, and whether more than once
- Were there any witnesses to the conduct
- Are there any risks to safety which need to be addressed
2. Support the complainant
Provide an initial response to the complainant including offering information and support, identify what their wishes are and ensure they are aware of their rights (such as referral to police, complaint to human rights bodies). Treat the matter confidentially and take any steps necessary to comply with work health and safety.
3. Police involvement
Where the matter is or may be reported to the Police, employers must take care not to contaminate or interfere with evidence or potential Police involvement. This includes speaking to the subject of the complaint or witnesses. The complainant should be supported but not forced to report the matter to the police if it could constitute a criminal offence.
Some matters can be managed informally, where a misconduct investigation may be necessary for others. The complaint itself is not an allegation and should never be provided to the alleged harasser. Applicable legislation, policies, agreements, awards, and employment contracts will need careful consideration in the context of the complaint before any allegations of serious misconduct are made.
If the matter is not under Police investigation, or the Police consent, the employer may investigate any part of the complaint which could amount to sexual harassment. This involves drafting allegations, gathering evidence, putting the allegations to the other person and obtaining their response.
Procedural fairness in this process is critical. In addition, great care needs to be taken in obtaining evidence and ensuring information is not contaminated or shared. This includes ensuring managers do not speak to groups of witnesses together or let a witness act as a support person.
Sexual harassment investigations are extremely sensitive and must remain confidential to protect the parties involved. Discretion must be applied as to the details of the complaint and the identity of the people involved to avoid the risk of re-traumatising the individual, victimisation or reprisals against complainants or witnesses, and unfair judgement, as well as minimising the risk of contaminating the evidence.
6. Balancing safety with fairness
The seriousness of the complaint, the complainant’s wishes, and in some cases the proximity of the working relationship between a complainant and the subject of a complaint should be considered. Suspension of the employee may be indicated for serious complaints. Other considerations include the safety of the complainant, witnesses or other staff, any risk of compromising the evidence or the investigation, and whether the parties involved can continue to work in a different manner (work from home, different hours, temporary relocation, floor or desk move). A suspension or direction not to work (as permitted by any industrial instrument), or any change in employment must not be undertaken as either retaliation or discipline, but a measure to ensure the safety of the people involved and the integrity of any investigation.
WEIR’s AWARE Unit provides training and support to help prevent sexual harassment in the workplace. Its consultants also review workplace culture and assess and investigate sexual harassment complaints. Contact WEIR for more information.