Sexual Harassment Is a Serious Issue.

Sexual harassment is a serious issue and will not be tolerated by those organisations who have a safe, inclusive, and respectful workplace culture. If an employee, contractor, or volunteer has been found to have engaged in sexual harassment, it may be treated as misconduct, and in very serious cases, sexual harassment can be considered a criminal offence. Laws protect the rights of individuals to ensure a safe, inclusive, and respectful workplace. Behaviour that is sexual harassment will lead to potential disciplinary action being taken, up to and including termination of employment.

Sexual Harassment and The Law

Laws apply to all workplaces, regardless of their size, geography, or industry which they operate. They protect employees, contractors, volunteers, customers, and visitors.  For example, in Australia there is federal legislation that includes the Australian Human Rights Commission Act 1986, Sex Discrimination Act 1984, Work Health and Safety Act 2011, and the Fair Work Act 2009. There are also relevant work health and safety regulators and human rights and anti-discrimination agencies in all states and territories in Australia that have laws that apply to all workplaces in those geographies.

Investigating A Complaint of Sexual Harassment in The Workplace

A complaint of sexual harassment may need to be investigated and subject to the nature of the complaint, it might be appropriate for a formal determination to be made about what has happened, and any disciplinary action. Where an investigation occurs, you must comply with your employer’s policy and notify human resources or a senior manager.

Step 1: Interview the Relevant Persons

As part of an investigation, all relevant persons will be identified and corresponded with, which might include interviewing or inviting a statement or written response in respect of the alleged breach.

Where interviews are conducted:

  • the complainant, respondent(s) and any witnesses will be interviewed separately.
  • records of the interviews will be documented.
  • requests made by a witness for the attendance of a support person at an interview will not be unreasonably refused.

Step 2: Obtain Other Facts

As part of an investigation, an employer can use reasonable means to obtain any other relevant facts. This may involve interviewing witnesses, and examining evidence such as emails, internet content including social media sites, or camera footage.

During the investigation process, it is always important that:

  • no assumptions are made that the respondent committed the conduct complained of or alleged.
  • confidentiality is observed and disclosure is minimised when dealing with complaints.
  • any disciplinary action taken is proportionate to the conduct committed by the person found to have breached the policy and engaged in inappropriate conduct.

Step 3: Set Out the Allegations

In addition to setting out the allegations to the respondent in writing, there may also be a summary of the allegations provided at an interview. The respondent(s) should be advised of the potential outcomes of the investigation if the allegations are substantiated.

Depending on the circumstances including the seriousness of any allegation, the respondent and any other parties may be stood down from their duties without pay during the period that the investigation is being carried out. However, it is important that you consider other policy documents or the respondent’s employment contract prior to determining whether there are any restrictions upon the stand down.

Step 4: Deal with Unsubstantiated Allegations

If an allegation is found to be unsubstantiated in that it is not sexual harassment and it is not in breach of your employers’ policy, no further action will be taken against the respondent in respect of the complaint. In this case, the reason for the decision will be explained to the complainant and the respondent.

Step 5: Deal with Substantiated Allegations

If an allegation is substantiated, the possible outcomes could include, but are not limited to:

  • requiring an apology.
  • counselling or training.
  • undertakings as to agreed forms of future behaviour.
  • taking disciplinary action against the respondent including the issuance of a warning, demotion, or termination of employment.

Where the disciplinary action may be termination of employment, separate written correspondence should be issued to the respondent to advise them of the fact that the allegations have been substantiated. The correspondence should provide written reasons for the substantiated findings. The respondent may be invited to show cause as to why their employment should not be terminated in the circumstances.

The disciplinary outcome should be communicated in writing to the respective parties including the complainant, noting that there may not be absolute disclosure of all matters by reason of privacy.

Step 6: Deal with False Allegations

Intentionally false allegations, or allegations that are found to be unsubstantiated because they are frivolous or vexatious should be viewed seriously and where found to be intentional or malicious, you may consider that disciplinary action should be taken, up to and including termination of the complainant’s employment with or without notice.

Step 7: Take Reasonable and Proportionate Actions

You must always exercise caution and common sense when dealing with incidents of sexual harassment or suspected sexual harassment. Reasonable and proportionate actions depend upon the nature and seriousness of the conduct which can include consequences for the complainant or the employer, including in respect of workplace productivity.

When deciding on the appropriate disciplinary action, you may consider the following:

  • the size and nature of the employer’s business or operations
  • the available resources and budget
  • practicability and the cost of a response.

To demonstrate compliance, it is important to maintain records that demonstrate the reasonable steps you have taken to prevent and respond to sexual harassment or suspected sexual harassment in the workplace. You should always consider and implement measures that promote safety in the workplace.

Like To Learn More?

To find out more about the responsibilities of a supervisor and manager when it comes to preventing and responding to sexual harassment in the workplace, please refer to the Sentrient preventing and responding to sexual harassment for supervisors and managers online course from our website.

Other Online Compliance Courses for Supervisors and Managers

The preventing and responding to sexual harassment for supervisors and managers training is one of a suite of six online compliance courses that deal with the duty that supervisors and managers have to represent their employer and contribute to a safe, inclusive and respectful workplace culture.

To get a free demonstration of the preventing and responding to sexual harassment for supervisors and managers online course please contact us today!