Why an independent workplace investigation is crucial with workplace bullying and harassment claims.
Workplace bullying and harassment are serious issues that not only affect employee well-being but also expose employers to substantial legal and financial risks. The failure to properly investigate complaints or act on the findings can lead to significant consequences.
In this article, we explore the importance of independent workplace investigations and the risks employers face when they mishandle or ignore harassment claims.
The legal consequences of mishandling workplace harassment claims.
In Australia, workplace harassment, including bullying, sexual harassment, and discrimination, is governed by various laws, such as the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth), and state-specific workplace safety legislation. Employers are legally obliged to provide a safe work environment and to respond promptly and appropriately to harassment claims. Failure to comply with these responsibilities can result in costly legal claims and damage to the company’s reputation.
The risks of ignoring workplace harassment complaints.
Case spotlight – Ewin v Vergara (No 3)
In the case of Ewin v Vergara (No 3) [2013] FCA 1311, the Federal Court highlighted the severe consequences employers face when they fail to address workplace harassment appropriately. In this case, Ewin, an employee, was subjected to sexual harassment by a colleague, Vergara. Despite multiple complaints, the employer did not take appropriate steps to investigate or address the harassment. As a result, the court found the employer in breach of both statutory duties and awarded Ewin significant damages.
The employer’s failure to act violated two key areas of law:
- Breach of the Sex Discrimination Act 1984 (Cth): The court found that the harassment constituted sexual harassment under the Sex Discrimination Act 1984. This Act prohibits all forms of sexual harassment in the workplace and places a clear obligation on employers to take reasonable steps to prevent it. By failing to take appropriate action after receiving multiple complaints, the employer was found liable under this Act.
- Breach of Workplace Health and Safety Obligations: In addition to federal legislation, the employer also breached workplace health and safety obligations, specifically under the Work Health and Safety Act 2011 (NSW) (WHS Act). Employers are legally required under this Act to ensure, so far as is reasonably practicable, the health and safety of workers. Failure to address bullying and harassment creates a hazardous work environment and exposes workers to psychological harm, which is a breach of the employer’s duty of care. The court ruled that the employer’s inaction was a direct cause of psychological distress to Ewin, which could have been avoided with proper intervention.
This case serves as a stark reminder that failure to investigate harassment claims promptly and effectively can lead to legal consequences and substantial damages for employers. Not only does mishandling complaints expose the company to lawsuits, but it also risks long-term reputational damage and a toxic workplace culture.
The importance of independent workplace investigations.
Many organisations attempt to handle harassment claims internally. However, in cases where senior employees or key personnel are involved, or when the allegations are serious, it is essential to engage independent workplace investigators. Here’s why:
- Neutrality and Credibility: Independent investigators can provide an unbiased, objective perspective that internal investigators, especially those within the same organisation, may lack. This helps maintain the integrity of the investigation and ensures that all parties feel the process is fair.
- Legal Protection: An independent investigation provides a well-documented, transparent process that can protect the organisation in case the matter escalates to legal action. A thorough, external investigation can also help ensure that the employer complies with their legal obligations under anti-discrimination and workplace health and safety laws.
- Employee Confidence: Employees are more likely to come forward with harassment claims if they know that an impartial, external investigator will handle the situation. It creates a safer, more supportive environment, where victims of harassment feel heard and respected.
The key benefits of engaging an independent workplace investigator.
- Legal Compliance: An independent workplace investigator ensures that the process complies with relevant legislation, including the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth), and the Work Health and Safety Act 2011 (NSW). Ensuring compliance with these laws reduces the risk of legal claims.
- Protects the Organisation: An impartial workplace investigation can safeguard the company from potential legal consequences, like those seen in the Ewin v Vergara case. It ensures that the organisation meets its legal obligations and helps avoid costly compensation or settlements.
- Reduces Future Risk: Addressing harassment issues appropriately helps prevent further incidents, reducing the risk of ongoing legal action, workplace dissatisfaction, and high turnover rates.
Why employers shouldn’t risk mishandling bullying and harassment claims.
The Ewin v Vergara case serves as a powerful reminder of the risks employers face when harassment complaints are not addressed properly. Ignoring or mishandling these claims can lead to significant financial and reputational damage, as well as create a toxic work environment. To mitigate these risks, it is crucial for organisations to engage independent workplace investigators when serious harassment claims arise. An external investigator ensures impartiality, thoroughness, and compliance with the law.
Workplace investigation support.
If your organisation is facing workplace harassment claims or if you want to ensure you’re prepared to handle these situations properly, it’s essential to seek expert guidance.
David Haydon is highly experienced in conducting impartial workplace investigations and advising organisations on best practices. He can be contacted directly for advice and support regarding workplace bullying and harassment claims.
David is an employment relations specialist, highly experienced workplace investigator and independent HR consultant. David works with clients Australia-wide.
David Haydon
Employment Relations Specialist, Workplace Investigator and HR Consultant
Disclaimer: This article is intended for informational purposes only. Any examples provided, including the fictional company “Retail Connect,” are hypothetical and used solely to illustrate the importance of proper handling of workplace harassment claims. They do not depict any real person or organisation. The case of Ewin v Vergara (No 3) [2013] FCA 1311 is a real legal case, and the details are summarised to highlight relevant legal principles. Readers seeking advice on specific cases should consult a qualified professional.