Responding to Allegations of Sexual Harassment

When allegations of sexual harassment and bullying arise, it is insufficient for employers to simply point towards a sexual harassment policy in an effort to dissolve itself from legal liability. Employers have a responsibility to prevent and respond to instances of sexual harassment in the workplace.

 

This involves developing robust policies, monitoring policy implementation, regularly communicating policy content and providing ongoing training.

Where allegations of sexual harassment warrant the need for a formal investigation, it is imperative that the investigation is fairly conducted, and the evidence carefully considered. However, this is easier said than done when the alleged incidents are uncorroborated, and employers are left with the classic he said/she said scenario. 

In a recent case before the FWC[1], a mine technician alleged that he was unfairly dismissed for breaching the company’s equal employment opportunity and anti- bullying policy, when his employer concluded that he engaged in sexual harassment towards a 19-year-old female trainee.

The allegations, which were raised at the trainee’s exit interview, were considered substantiated by the employer and formed the basis for the technician’s dismissal. These included that he patted, slapped or otherwise touched the trainee on the backside when confined in the space of the ‘man basket’. It was also alleged that he engaged in sexually explicit conversations with the young woman, stating (when she talked about her relationship with her boyfriend) that he could stay with her rent-free “as long as you like gardening and sex and helping around the house”. In the employee’s extensive show cause letter, he denied that these incidents happened and alleged that the trainee had made them up. However, seven months after the events occurred, the employee was dismissed for failing to observe the company’s policies and code of conduct.

After reviewing the evidence presented from both sides, the FWC decided that there was “no clear and cogent proof” to conclude that the allegations had been made out. Regarding the allegations involving the ‘man basket’ incident, Commissioner Spencer was not satisfied that contact was deliberate, rather inadvertent and unavoidable given the proximity of space. In relation to the sexually explicit comments, it was found that the evidence presented by the trainee was “unconvincing”.

Whilst it was decided that there was no valid reason to dismiss the employee, Commissioner Spencer emphasised that “nothing in this decision should be construed as condoning sexual harassment at a workplace in any way”. She also commented on the failure of the employer to take “active steps” to monitor the trainee’s progress following reports from her colleagues about her “poor language”. It was contended that the trainee swore excessively and discussed personal sexual matters in front of other workers, causing personal discomfort. Given that the company could be held vicariously liable for the allegations raised by the trainee, the FWC criticised the company for their lack of further training, mentoring and discussions regarding appropriate workplace conduct. The FWC considered it appropriate to reinstate the employee.  

 Lessons for employers

• Ensure policies are regularly communicated and explained to all employees. What are the consequences that follow for those who have breached the policy? Ensure that these are fairly and consistently applied to all employees.
• Consider the complaints procedure in place. Does the workplace environment encourage employees to voice their concerns or disclose incidents?
• Where necessary, provide training for employees explaining conduct which may be categorised as sexual harassment.

• When allegations of sexual harassment are made against an employee, consider whether it is necessary to appoint an external investigator.