INVESTIGATIONS

Addressing the potential of sexual harassment in your business

Table of Contents

Hypothetical Scenario

You are the owner of a small to medium business. Things have been a struggle with Covid and supply issues, but you are managing. It is Friday afternoon and you are looking forward to the weekend to catch up with the family. 

The door bursts open–Mary, an employee, is standing there, it is obvious she has been crying. Her eyes a red and her makeup is smeared.

She cries again, sobbing, saying she has had enough–enough of the harassment, enough of the comments, enough of the touching.

You are stunned–she is a great worker, a member of the team. OK, she may have dressed differently with holes in her jeans, low-cut blouses, tattoos, and piercings, but she was a good kid. She worked hard. 

You ask her to sit down. Does she want a glass of water, anything? She sobs and asks for a beer. You go to the fridge and get her a beer; you take one for yourself and sit down opposite her. You notice the top button is undone on her blouse and you try to avoid looking directly at her, but it is difficult. 

You ask her what is wrong–she tells you John (an employee in the warehouse) keeps asking her out. She does not want to go out with him but he persists saying it would be good for her, he can make her happy. Lately, he has become more aggressive. He tried to corner her in the locker room, but she dodged him. He grabbed at her arm, but she got away. 

She went to the supervisor and complained. He told her not to worry as it was part of working in the company. John was a friendly lad and she should take him up on his offer.

Things went downhill after that–John commented on the size of her breasts saying he wants to squeeze them. He said this in front of the other workers and the supervisor–one of them commented “he would need enormous hands”. They all laughed at that comment–she was very embarrassed and upset. 

She tells you this has been going on for some time. She is also upset by some posters on display in the lunchroom area. These are some retro tyre posters with women in shorts and small tops endorsing tyres. She says they make her feel uncomfortable.

You sit there listening to her–your mind is in a tumble. The business is turning around and now you have this.

What do you do?

1. Do you tell her not to worry? The guys are just fooling around. They meant nothing and you will talk to them about it?
2. Do you tell her you will look into it–ask her to think about what she wants to do over the weekend and then come and see you on Monday morning.
3. Do you take detailed notes of her complaint and advise her you will act?
4. Do you call in the supervisor and ask him/her what is going on in an effort to corroborate what Mary has told you?
5. Do you investigate what she has told you?
a. If so–how do you decide who will investigate–internal or external
6. What action can you take if Mary is telling the truth?
7. How will you determine if she is telling the truth?
8. Should you involve the Union?

These questions should not arise if you have a structured policy and training program addressing sexual harassment in the workplace.

ACCA can help you with this process.

What is sexual harassment?

There is a lack of understanding in the workplace about sexual harassment. Conduct previously accepted will no longer be tolerated. 

Sexual harassment is unwelcome conduct, talking, touching or other action, of a sexual nature which makes a person feel offended, humiliated, or intimidated–the reaction being reasonable in the circumstances. 

It is important to note, you must consider the feelings of the “victim” not the intent of the person engaging in the conduct. “I didn’t mean it” is not an acceptable excuse!

Safe Work Australia highlights examples of overt, covert, or subtle sexual harassment. These include:

• Unwelcome touching, hugging, cornering, or kissing
• Inappropriate staring or leering
• Suggestive comments or jokes
• Using suggestive or sexualised nicknames for co-workers
• Sexually explicit pictures, posters, or gifts
• Circulating sexually explicit material
• Persistent unwanted invitations to go out on dates
• Requests or pressure for sex
• Intrusive questions or comments about a person’s private life or body
• Unnecessary familiarity, such as deliberately brushing up against a person
• Insults or taunts based on sex
• Sexual gestures or indecent exposure
• Following, watching, or loitering nearby another person
• Sexually explicit or indecent physical contact
• Sexually explicit or indecent emails, phone calls, text messages or online interactions
• Repeated or inappropriate advances online
• Threatening to share intimate images or film without consent, and
• Actual or attempted rape or sexual assault.

It need not be repeated behaviour–a one off instance is enough!

It is not restricted to the workplace–Safe Work Australia highlights it can occur if the worker is off site such as a different location (Client’s premises–house or business). It can occur at a work-related activity such as a work trip, training course, conference or even if you host a work-related social activity. 

Also, be aware it can occur with an interaction with third parties such as customers, clients, consultants, or suppliers.
Sexual harassment is not always obvious, repeated, or continuous. Unlike bullying, which is characterised by repeated behaviour, sexual harassment can be a one-off incident.

Sexual harassment can also be a behaviour that, while not directed at a particular person, affects someone exposed to it or witnesses it (such as overhearing a conversation or seeing sexually explicit posters in the workplace).

It can also occur if a worker receives offensive text messages after work from a colleague or client.

You are not immune

The Australian Human Rights Commission conducted a workplace survey. They reported:

• One in two people had been exposed to sexual harassment either as a victim or witnessing it in the workplace.
• Two in five people (48%) said they knew of others in their workplace who had experienced the same form of sexual harassment as they had.
• More than half (56%) who had repeated experiences said the harassment had been occurring for more than six months.
• Almost 2 in 5 women (39%) said they had experienced sexual harassment at work in the previous five years. One in 4 men (26%) had the same experience.

What is the impact of sexual harassment?

It can destroy your business! NO, I am not being melodramatic! 

The matter could end up in the media with your company and you being highlighted as failing to protect workers. The resultant publicity could ruin you.

The union becomes involved, leading to potential disputes or other workplace issues.

But what about the employee or employees?

The first thing to accept is sexual harassment is not gender specific.

The victim can experience feelings of social isolation in the workplace or withdrawal in a family environment–does not want to talk about it. 

There can be a loss of confidence leading to withdrawal. 

There are potential negative impacts on the victim’s career

Sometimes there may be physical injuries.

The conduct may lead to stress, depression, anxiety, and post-traumatic stress disorder or PTSD, as it is known.
The stress can be a catalyst to other illnesses, and

There is the potential for suicidal thoughts as the burden becomes too much. 

Preventing workplace sexual harassment.

The first thing you need to understand is sexual harassment is against the law.

The Commonwealth Sex Discrimination Act outlaws sexual harassment. There is also legislation in various States.
You must maintain a workplace without risk to the health and safety of workers. 

Sexual harassment is recognised as a systemic risk within all workplaces. Safe Work Australia refers to these factors likely to increase the risk of sexual harassment in the workplace. These include:

• Low worker diversity e.g., the workforce is dominated by one gender, age group, race, or culture
• Power imbalances, e.g., workplaces where one gender holds most of the management and decision-making positions
• Workplaces organised according to a hierarchical structure, e.g., Police and enforcement organisations, or medical and legal professions
• A workplace culture that supports or tolerates sexual harassment, including where lower level (but still harmful) forms of harassment are accepted e.g., small acts of disrespect and inequality are ignored and reports of sexual harassment or inappropriate behaviours are not taken seriously this conduct can escalate to other forms of harassment, aggression, and violence
• Use of alcohol in a work context, and attendance at conferences and social events as part of work duties, including overnight travel
• Workers are isolated, in restrictive spaces like cars, working at residential premises, living in employer provided accommodation, working from remote locations with limited supervision, or have restricted access to help and support
• Working from home which may provide an opportunity for covert sexual harassment to occur online or through phone communication
• Worker interactions with clients, customers, or members of the public (either face-to-face or online) which may give rise to third-party sexual harassment, and
• Poor understanding among workplace leaders of the nature, drivers, and effects of sexual harassment

It is also important to appreciate there is a stronger likelihood of sexual harassment among workers because of their sex, gender, sexuality, age, migration status, disability, and literacy. The risk compounds when a person suffers from multiple forms of discrimination.

What can you do about it?

One of the best things to do is to talk with your employees–speak to them about the potential issues. Make sure they understand what sexual harassment is.

Your employees must understand it is a workplace health and safety issue. 

Have a code of conduct or similar policy–include sexual harassment as part of that policy or have a stand-alone policy relating to sexual harassment. 

Workers need to be confident they can raise issues can without repercussions–you may need to consider a confidential advice program where employees can provide information. 

Walk through the workplace–are there posters likely to offend? Are there areas where workers are within proximity, such as tight corridors?

Monitor online social interaction where possible.

Consider working conditions–are the conditions conducive to potential sexual harassment issues?

Review the culture of the workplace–is borderline sexual harassment accepted? Are sexual or gendered jokes and teasing part of daily working life leading to employees joining in without realising the impact on others?

Identify how the supervisors interact with the team–are there potential issues where it appears employees are reluctant to mix or be alone with others?

Carry out anonymous surveys to identify if employees have experienced or witnessed sexual harassment.

Speak to employees who change their work habits, they take more sick leave than normal; they avoid interaction with others in the workplace. 

Why are employees not taking part in workplace functions, are there are several resignations from a particular area?
Conduct exit interviews and surveys. This is an ideal time to identify potential issues. 

Review any work cover claims–is there an underlying reason for the claim?

Look at the structure of your organisation–is it conducive to sexual harassment because of the hierarchical nature of supervisors in place? 

Be aware of research–the 2018 Human Rights Commission survey showed only 17% of persons who suffered sexual harassment reported it.

Third party sexual harassment 

Third parties, such as customers, contractors, or suppliers, can commit sexual harassment.

How do you address this?

The first thing to do is to talk to employees who may be exposed. This would include employees required to attend premises of customers either during working hours or after hours. 

Sometimes, an employee must work off site–this may expose him or her to sexual harassment. 

You need to visit the site to see if there are any potential issues or risks to your employees. 

Sometimes, there is an expectation your employees will wear a uniform as part of the contract–you need to make sure your employee is comfortable with this request. Could it lead to inappropriate comments? 

Observe the interaction between customers and the employees–is there any sign of a lack of respect or an “openness” which may be inappropriate?

If appropriate, check out the locker rooms or change areas–any inappropriate posters, etc.

Any history of inappropriate conduct within this work place?

Controlling the risk of sexual harassment

You need to implement procedures to eliminate or minimise the risk of sexual harassment in your workplace. This is important if you are ever called to account before a Tribunal or any civil action. 

Be proactive–these are some steps you can take:

• Examine your existing policies and control measures
• Provide a safe physical and online work place
• Provide safe systems and procedures for your employees
• Speak with your employees and get their feedback on policy development to protect all employees
• Implement systems to address potential third-party sexual harassment–makes sure you advise to regular suppliers and contractors as to expected behaviour with your employees.

Reporting of sexual harassment 

The Australian Human Rights Commission survey in 2018 highlighted most people who were sexually harassed were reluctant to report the incident. This may have changed in recent times with the “MeToo” movement, but there is still the potential for parties not to report incidents. 

There are various reasons for this. These include:

• It is part of the job. If I report it, I will be sacked.
• It is part of the culture in the workplace–just have to live with it.
• This is not serious enough to report–maybe he/she was just fooling around.
• Even if I report it, nothing will happen, and my name will come out.
• Who will believe me–she/he is my supervisor
• Who will believe me–the “offender” is a major client
• I am not sure if I had the right to make a complaint–what are the rules?

How to overcome reluctance in reporting sexual harassment

In a word – education, education, education. Ok, maybe three words.

You need to provide employees with information, instruction, training, and supervision to support your overall strategy for preventing sexual harassment. 

Conduct training sessions at all levels. Provide printed information, including posters highlighting sexual harassment will not be tolerated. 

Identify a contact person if an employee wants to make a confidential report or seek guidance.

Have a stand-alone policy highlighting what sexual harassment is and reinforcing zero tolerance in the workplace. 

If the workplace is culturally diverse, then ensure they clearly understand the material, even if you need to translate into other languages. 

Make sure supervisors/managers are aware of the risks and their obligations in addressing sexual harassment issues in the workplace. 

How to respond to reports of sexual harassment 

Foremost, take the complaint seriously–you need to listen to the complaint. If you are a male and a female is reporting the sexual harassment, then I recommend you seek permission from the complainant to have a woman present or see if the complainant would be more comfortable talking to another woman about the incident or incidents. 

Remember, sexual harassment need not be a male–female incident. It can occur male to male or female to female.
Discover if there is immediate danger to employees–if there is then you will need to involve the police. 

Then determine these important facts–when did it occur? What happened? Who is involved? Was anyone else present? Is the conduct likely to continue? Is there a need to prevent an ongoing occurrence?

What does the complainant (the victim) want to happen? Can intervention resolve it? If so, you need to have a record of the decision and what action you take in case of reoccurring incidents.

If the complainant wants the matter to proceed, once you have all the facts, you need to determine what your next step will be–should I investigate or should I retain independent advice? You must appreciate you are about to enter a legal minefield. 

It would depend on the allegation, but I do not recommend you rush down and speak to the accused person. In my experience, there would be denials or minimising the conduct. It could also lead to retaliation or ostracization of the employee from the workforce. The latter is likely to occur if the “offender” is a supervisor. 

However, if the complaint relates to offensive material, then see if this material is present. If it is, then remove it and speak to anyone associated with the incident to ensure it does not occur again. 

If it is not straightforward, then you need to determine what occurred. Is it sexual harassment? Whom should I speak to…. These are “mines” in the legal minefield. 

Get independent help–you need to retain an independent, skilled an unbiased investigator. These investigations are complicated because of the allegations and evidence. There may be issues with where the conduct occurred–was it after hours? Was it work related? 

You also need to consider the “victim” in these matters–this person has made a big decision to come forward. It may expose him or her to retaliation, there is the potential for mental trauma associated with the act or acts. 

There are also potential issues with witnesses–the investigation will require speaking to witnesses. This may place these persons in a “difficult position”–whom will they support? This is not black and white–there are a lot of workplace loyalties to be tested in these instances.

Do I suspend the “offender”?

This is another contentious issue – is there an accepted procedure within the workplace that allows you to suspend an employee for alleged misconduct? Remember, you have not proved the allegation or even investigated it. 

You may want to initially speak to the “offender”–I use that term reservedly. Remember, there is the potential to contaminate evidence if you do this. The person may deny or minimise his or her actions. When he or she leaves you, there is a strong possibility he or she is likely to speak to others and muddy the evidence pool. 

Maintain a record of any action you take, as you may be asked to justify your actions later in a court or other proceedings.
Can I dismiss the “offender”?

You may find the allegations so serious you need to take immediate action. You believe the person may have broken the law, so you want him or her out of the workplace. 

There may be a provision within your code of conduct allowing you to dismiss an employee for a serious breach of the Code. You determine the “offender” cannot remain in the workplace, so you dismiss him or her. 

You cannot take this action until you give this person an opportunity to respond to the allegations–if you do not do this then the decision to dismiss is unfair and likely to challenge in the Fair Work Commission. The Small Business Fair Dismissal guide provides information to assist the employer in making these decisions. 

Investigation 

You determine you need to discover more about the allegations. Retain an independent and experienced investigator as soon as possible. The investigator will review the allegations and identify corroborating evidence. 

The investigator will then determine the most appropriate way to progress the investigation.

Procedural fairness is the foundation for all workplace investigations. You must ensure the alleged harasser is told of the allegations. Give him or her an opportunity to respond to the allegations. 

The eventual decision maker must be unbiased–they must not be open to any accusation of pre-conceived determination. 

Standard of Proof

Work place matters fall under the civil or administration burden of proof. Is it more probable or likely the alleged act occurred? There is a historic case known as Briginshaw that shows the more serious the allegation then the evidence needs to be stronger to substantiate it. 

The investigation 

The investigator will provide you with a report identifying findings of fact and (if asked) conclusions showing whether the allegations are substantiated. Sometimes you may decide you will make that determination based on the evidence provided.
If the investigator substantiates the allegations, then you must decide what action you will take–this could be a formal warning which is recorded, demotion or dismissal.

You must appreciate your decision may be challenged, so you must seek advice or make sure you are following established procedure. 

The investigation may also identify other issues such as lack of training, lack of policies, a culture accepting of sexual harassment. These are issues you need to address.

The investigation may determine there is insufficient evidence at the required level to substantiate the allegations. However, it may show there is still a risk of sexual harassment in the workplace through a lack of awareness or training. This may be detrimental to workplace health and safety and expose your company to litigation. You need to address this. 

Communication 

You must keep the “victim” and the alleged “offender” informed about what is happening. You cannot let this drag on for weeks or months. 

If it is determined there is insufficient evidence, then the complainant will be distressed. He or she will feel diminished. The investigator did not believe them. How can they return to the workplace? What will people think about him or her? This is something you must manage carefully and with compassion. 

In these circumstances, you also must manage the accused and the witnesses. Speak to these parties. Explain the situation and highlight the need for understanding and compliance with standards.

Policies

Review your policies. You may need to get external advice on the details of these policies.

Training

You must have a structured training program in place. This program needs to address all aspects of sexual harassment. You must keep records of persons who attend these sessions. 

Induction of new employees must include a segment relating to zero tolerance of sexual harassment. All new employees must sign off as acknowledging this requirement.

What can happen if I do not act to stop sexual harassment in the workplace?

You can be prosecuted for breaching work health and safety legislation–you must provide your employees with an environment free from sexual harassment. If you do not do this, then you expose the company to financial penalties imposed by a court. 

You, as the employer, can be held liable for sexual harassment committed by your employees, leading to massive payments. 

How can ACCA help?

We can review your policies to ensure they adequately address all issues

We can help review or develop your disciplinary process

We can provide training for your employees on the issues surrounding sexual harassment

We can investigate allegations of sexual harassment to provide an independent and unbiased report. 

We can help you at all levels.

In need of Assistance? Contact Us for a free consultation.

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