How to Handle a Sexual Harassment Complaint in the Workplace: A Guide for Australian Employers
Dealing with a sexual harassment complaint in the workplace can be a challenging and sensitive process. In Australia, employers have legal obligations under the Sex Discrimination Act 1984 and various state and territory laws to provide a safe working environment free from harassment. Failure to address these issues promptly and effectively can expose businesses to significant risks, including legal action, reputational damage, and a toxic workplace culture. This guide outlines the steps for handling complaints internally and identifies when it’s necessary to seek external professional assistance.
Encourage Open Communication
Creating a workplace culture where employees feel comfortable reporting sexual harassment is the first critical step. Employers should:
- Promote open communication by providing clear, accessible channels for lodging complaints, such as through HR, a designated ombudsman, or anonymous reporting systems.
- Ensure employees are aware of their rights and the procedures in place for reporting harassment.
- Provide ongoing education and training on workplace harassment to prevent issues before they arise.
Document the Complaint Accurately
When a sexual harassment complaint is made, it’s essential to document the details thoroughly:
- Record the date, time, and location of the alleged incident.
- List all parties involved, including the complainant, alleged harasser, and any witnesses.
- Collect and preserve any supporting evidence, such as emails, text messages, or other forms of communication.
Proper documentation ensures that the investigation process is based on facts, which is vital if the case escalates to legal proceedings.
Conduct a Thorough and Impartial Investigation
Once a complaint is received, the employer is legally obligated to investigate. Investigations should be:
- Confidential: Ensure discretion throughout the process to protect the privacy of all parties involved.
- Impartial: The investigator must have no conflicts of interest and should be trained in handling sensitive cases, such as sexual harassment.
- Comprehensive: Interview the complainant, the alleged harasser, and any relevant witnesses, keeping detailed records of all conversations.
Failing to investigate or conducting a biased investigation can result in legal action, penalties, and a loss of trust among employees.
Determine the Appropriate Action
Based on the findings of the investigation, determine what actions are necessary to resolve the complaint. Potential outcomes may include:
- Disciplinary actions such as counseling, training, suspension, or termination.
- Implementing workplace changes or additional training programs to prevent future harassment.
- Ensure that the action aligns with both the organisation’s policies and Australian law.
Consistency in enforcement is crucial. Employers must apply their policies fairly to avoid claims of bias or unfair treatment.
Communicate with All Parties Involved
Once a decision has been made, inform both the complainant and the alleged harasser of the investigation’s outcome:
- Clearly outline the actions taken, while maintaining confidentiality where necessary.
- Reinforce the organisation’s commitment to a safe and harassment-free workplace.
- Provide ongoing support, particularly for the complainant, to ensure they feel safe and valued within the workplace.
Risks for Employers Who Fail to Address Sexual Harassment
Employers who fail to handle sexual harassment complaints properly face significant risks, including:
- Legal risks: Employers can be held liable under Australian law if they fail to prevent or address harassment. This can lead to lawsuits, costly settlements, or penalties.
- Reputational damage: Mishandling a complaint can tarnish an organisation’s reputation, affecting employee morale and external business relationships.
- Workplace culture: Failing to act decisively can foster a toxic culture, leading to high turnover, absenteeism, and reduced productivity.
When to Engage an External Employment Relations Expert
In certain circumstances, employers should seek external advice to ensure compliance with the law and to maintain objectivity in the investigation process. Here are some instances when engaging an expert is advisable:
Complex Cases
If the complaint involves multiple parties, complicated dynamics, or potential legal implications, it’s prudent to consult an external workplace relations expert. These professionals can guide employers through the legal aspects of the case, reducing the risk of missteps.
Conflicts of Interest
In-house HR teams may have conflicts of interest if they are too close to the parties involved. Bringing in an impartial third party ensures that the investigation is conducted objectively.
Legal Implications
If the complaint escalates or has potential for legal action, seeking advice from an employment lawyer or workplace relations specialist is critical. They can help navigate Australia’s legal framework and advise on risk mitigation strategies.
Policy Review
An external expert can review and update the organisation’s harassment policies and procedures, ensuring they comply with the latest regulations and industry best practices.
Prevention and Training
Experts can assist in implementing effective harassment prevention training, helping to foster a safe and inclusive workplace culture.
Employer Obligations Under Australian Law
Employers in Australia are legally required to take proactive steps to prevent sexual harassment under the Sex Discrimination Act 1984 and state-specific legislation, such as the Fair Work Act 2009 and Work Health and Safety (WHS) laws. Employers must provide a safe work environment and may be held vicariously liable if they fail to prevent or address harassment. This underscores the importance of having comprehensive policies in place, regularly training staff, and promptly investigating all complaints.
Conclusion: Prioritising a Harassment-Free Workplace
Handling sexual harassment complaints in-house is possible for many Australian employers, but seeking external expertise is invaluable for complex or high-stakes situations. Regardless of the chosen approach, the key priority should always be the safety and well-being of employees, and ensuring that the organisation fosters a harassment-free workplace.
By adhering to legal obligations, acting promptly, and providing support, employers can mitigate the risks of sexual harassment complaints while contributing to a positive, inclusive working environment.
Workplace Investigations Support
At ER Focus, we provide independent workplace consultancy and advisory services, ensuring that each situation is assessed from all perspectives before offering tailored advice. Our investigations follow the appropriate standards of proof, typically applying the civil standard as outlined by the High Court in Briginshaw for each allegation.
However, in certain sensitive cases, we recommend conducting investigations under the instruction of our legal partners to ensure they are protected by legal professional privilege. This privileged approach can safeguard your organisation during complex or high-risk investigations.
Contact
David Haydon
Employment Relations Specialist and HR Consultant
📞 0409 400 118 | Send an SMS