The information that follows does not impose mandatory procedures for organisations to follow when a report of sexual harassment is made or when an employee’s conduct is called into question. Instead, it seeks to provide clear guidance for managers to consider when developing their own policies and procedures in relation to claims of sexual harassment. Any policy and procedure developed must be consistent with the employer obligations under the applicable enterprise agreement.
1. Treat the person who has made a report and respondent with respect
Explanation
People who have made a report usually find it very difficult to make allegations about sexual harassment. They worry about the consequences and the effect the report will have on others in the workplace. They may feel vulnerable and concerned about losing their jobs.
Action
- Thank the person who has made a report for raising the concern.
- Listen to the person who has made a report in an open and impartial way.
- Reassure the person who has made a report that raising the concern is the right thing to do, that the organisation takes sexual harassment seriously, and that it has legal responsibilities and obligations for its employees under the Equal Opportunity Act 2010 and the Sex Discrimination Act 1984.
- Advise the person who has made a report that their report will be considered as a matter of priority.
- Advise the person who has made a report that a range of disciplinary actions are available if their claim is substantiated, which vary in severity.
- Remember that your response can set the tone for the management of the issue from the person who has made a report perspective.
- Ask the person who has made a report what they would like to happen next from a process reporting perspective as well as from a wellbeing perspective, such as taking the rest of the day off.
- Employers have a duty of care to respondents and must ensure the report is considered fairly.
- Follow up on and action any commitments made to the person who has made a report and report back to the person who has made a report.
- Prioritise the health and well-being of the person who has made a report throughout the process by regularly checking in with them to make sure they are ok.
- Offer support to the person who has made a report through professional support services such as the EAP or flexible working arrangements.
2. Confidentiality
See section 7 Key considerations for detailed information.
Explanation
To the extent it is appropriate to do so, disclosures or reports of sexual harassment must be kept in confidence in order to protect personal privacy. Employers are obliged to take appropriate action in this respect as they have a duty of care in providing a safe workplace for all employees.
Action
- Advise the person who has made a report that the information that they disclose regarding the incident will be kept in confidence to the extent it is appropriate to do so.
- Also advise the person who has made a report that there is a chance that their matter may need to be escalated or referred to other relevant persons within the organisation (e.g., HR or equivalent) who are managing the report, the respondent to whom the allegation relates to, or external bodies such as police or WorkSafe. Particularly, this may be the case in circumstances that constitute a criminal offence, present an occupational health and safety risk, or require disciplinary action.
Example scenario
Issue
A person who has made a report approaches their manager to advise that a team member has been making unwelcome sexual advances and that this is causing them distress. The person who has made a report also advises that, despite this, they do not want the matter to be taken any further as they are concerned this will negatively impact their career. The person who has made a report expresses that they are sure the behaviour will stop.
Response
The manager should empathise with the person who has made a report and acknowledge that:
- sharing their experience must be difficult;
- no-one should feel distressed at work; and
- the matter raises serious concerns.
The manager should then advise that these concerns will be discussed with HR (or equivalent) to identify the path forward and will be kept confidential to the extent it is appropriate to do so.
3. Seek guidance
Explanation
HR practitioners (or equivalent) are experienced in managing sexual harassment.
Action
Seek guidance from HR practitioners (or equivalent) on next steps and how to ensure that both a person who has made a report (and if applicable, a respondent) are provided with appropriate guidance and/or support.