Managing a Sexual Harassment Complaint in the Workplace

OWEN WEBB - AHA|SA WORKPLACE RELATIONS MANAGER

Employees in the work environment should be able to feel as if they are respected by their fellow employees as well as by customers. No one should be subjected to unwarranted and unwelcome behaviour or conduct whilst at work. There are laws in place to affirm that employees have the right to be free from such unwarranted conduct in the workplace.

This article will outline when conduct is deemed sexual harassment and how a complaint of sexual harassment in the workplace should be handled. It will also discuss the liability of those involved and ways in which employers can prevent such conduct from arising at their workplace.

WHAT IS SEXUAL HARASSMENT

Sexual harassment in the workplace is unlawful under both state and federal work, health and safety and anti-discrimination legislation. Sexual harassment in the workplace can be defined as any unwelcome conduct of a sexual nature which makes a person feel offended, humiliated and or intimidated and it is reasonable for the person to feel that way in the circumstances.

It is not necessary for the perpetrator to intend the behaviour to be of a harassing nature for the behaviour to be classed as sexual harassment. If it is reasonable in the circumstances that the person is offended by the behaviour, then it would be considered sexual harassment.

Under work, health and safety legislation a ‘workplace’ means a place where work is carried out for a business or undertaking and includes any place where a worker goes, or is likely to be, while at work.

Sexual harassment can occur:

• At a worker’s usual worksite

• Where a worker is working remotely

• Where work is being undertaken at a different location

• Where a worker is engaged in a work-related activity such as a training session, conference or social event such as a Christmas party

• By phone, email or online through social media platforms

Sexual harassment in the workplace can also occur from third-parties who interact in the workplace, such as customers, clients and contractors.

Unwelcome conduct of a sexual nature

For conduct to amount to sexual harassment it must constitute unwelcome conduct of a sexual nature. This may include for example sexually explicit jokes, inappropriate emails, suggestive comments, unwelcome touching, hugging or kissing, sexual assault and requests for sexual favours.

Conduct would be considered unwelcome if the person to whom the conduct was directed feels that the conduct was not invited or reciprocated (subjective test). Further, the conduct must be directed at the complainant directly, however if the behaviour creates a hostile or demeaning atmosphere within the workplace then the indirect conduct will be deemed unwelcome.

Unreasonable in circumstances

It is important to remember that the test for determining whether conduct amounts to sexual harassment is far broader than simply the subjective feelings of the employee.

The unwelcome conduct must be deemed unreasonable in the circumstances. This is assessed against whether a reasonable person would have anticipated in all the circumstances that the person being harassed would have been offended, humiliated, or intimidated. Factors that may be relevant in determining whether the conduct was unreasonable in the circumstances could include - the age and background of the victim, the working relationship between the victim and alleged perpetrator (e.g. manager and subordinate), as well as the nature and context of the conduct.

LIABILITY

Under both state and federal law the harasser themselves can be found liable. The employer can also be found liable for the conduct of the harasser when the harassing conduct occurs in connection with work. The workplace is not limited to the physical boundaries of the workplace and the conduct need not occur whilst an employee is on duty.

An employer will not be deemed liable if they can show that they had taken all reasonable steps to prevent the employee from engaging in the conduct which is the subject of the complaint. Merely having a workplace policy will not been seen as reasonable. A workplace must engage with that policy which may involve regular reminders to employees of its existence. Failure to act in accordance with the policy, which includes handling complaints as outlined in the policy, is likely to see the employer found liable.

COMPLAINTS

Some employees who are subjected to sexually harassing behaviour decide not to make a complaint. They may be afraid to speak up for fear of retribution or may feel as if they will not be listened too. If a complaint is received by the employer, the following steps should be taken by the individual(s) investigating the complaint:

• Every complaint should be treated seriously and promptly, even if the person investigating the complaint thinks the initial complaint may lack merit.

• Ask the complainant if they want the complaint to be dealt with formally or informally.

• Ask the complainant to put their complaint in writing outlining the actual incident(s).

• Speak with the complainant to obtain as much detail as possible about the complaint – what happened, when did it happen, was there any witnesses to the incident. Inform the complainant of what process you will be undertaking to investigate the complaint and gain an understanding of the outcome they are seeking. Remind the complainant that the process is confidential and that other witnesses may need to be interviewed as part of the investigation if there were witnesses to the incident(s). Obtain permission from the complainant to provide their name and details of the complaint to the alleged perpetrator. It is important at this stage that you gauge whether there is substance to the complaint. This may require a preliminary investigation to be conducted (eg review CCTV footage).

• Hold a meeting with the alleged perpetrator to outline the complaint, the incident(s), the concerns of the complainant and to obtain their response(s) to the allegations. The alleged perpetrator may want additional time/days to appropriately respond to the allegation(s).

• Ensure that the alleged perpetrator is afforded the appropriate procedural fairness throughout the investigation process, such as being offered the opportunity to have a support person of their choosing present and provided with sufficient notice of any meeting(s).

• After discussing the complaint with both the complainant and the alleged perpetrator it may be necessary to undertake further investigations. This may involve speaking with other employees who may have witnessed the event, employees who work in the same department or area as the complainant and alleged perpetrator. It may be necessary to review CCTV footage or the employees personnel file for past incidents or complaints.

• Decide on the appropriate outcome. The outcome will be determined according to a range of factors, including the responses from the alleged perpetrator, the severity of the alleged perpetrator’s actions, the available evidence such as witness statements and any CCTV footage. The outcome could include – no further action, a written warning or termination of employment. There are other actions that may also be appropriate such as relocating the victim and alleged perpetrator to a different area or department of the venue.

• Confirm the outcome with the alleged complainant. In the event the complainant wants to take the matter further, they may wish to take the complaint to an external body (for example the Fair Work Commission or the Australian Human Rights Commission).

If after the investigation and discussions it is decided that no further action be taken in this instance, it does not mean that nothing can be done. It may be a good time to remind all employees of the venues stance on sexual harassment by reaffirming the venue’s policy and or by conducting harassment training for all employees.

PREVENTION

Preventing sexual harassment from occurring in the first place is key. This can be achieved by undertaking a range of different measures including:

• Having a clear workplace policy which outlines the type of behaviour that will and will not be accepted in the workplace, and what an employee can do if they experience an incident of sexual harassment.

• Regular training and development on sexual harassment

• Regular training for staff on how to deal with unacceptable behaviour from patrons

• Minimising the need for employees to be working on their own, particularly at night

• Ensuring appropriate CCTV footage is in place

• Encouraging the reporting of any incidents of sexual harassment

• Regular reminders and memos to employees of the importance of a harassment free workplace.

FURTHER INFORMATION

Members should contact the AHA|SA Workplace Relations Team for further assistance and advice. A template sexual harassment policy can be downloaded from the members section of the AHA|SA website. In addition, members can access Bullying, Discrimination and Harassment training conducted by the AHA|SA.