This document is part of the Prevention of Sexual Harassment in the Workplace resource.
7.1 Industrial Instruments
7.1.1 Public sector enterprise agreements
All Public Sector organisations are covered by enterprise agreements. Organisations should look to their enterprise agreement in the first instance for direction on the key considerations and any other procedural obligations that may be set out, for example in a misconduct clause, when developing policies and procedures to manage reports of sexual harassment.
7.1.2 Clause 21 of the VPS Agreement
The key considerations set out in this Guide are not intended to supersede the process for managing misconduct established by clause 21 of the VPS Agreement (clause 21 process). Supervisors and managers, in consultation with HR advisers, will be required to treat all allegations of sexual harassment against employees covered by the VPS Agreement in accordance with the clause 21 process, including any investigation or determination of a disciplinary outcome.
7.2 Natural justice
When considering a complaint, one of the primary aims is to ensure that all procedures are followed correctly, and industrial obligations met. This prevents, as far as practicable, the possibility of an employee being treated unfairly or unreasonably, and having to seek an avenue of redress, such as an internal review or an unfair dismissal claim.
7.2.1 What are the rules of natural justice?
The rules of natural justice ensure that investigations, and any related decisions, are fair and reasonable. Natural justice can have a particular meaning under different industrial instruments and these should be referred to as appropriate. Notwithstanding this, natural justice can include that:
- The respondent is informed of the specific allegations made against them, so they have a fair opportunity to respond. It is important the respondent is provided with as much information as possible in writing – i.e. dates, names and details of the alleged conduct, as appropriate. Providing the respondent with generalised allegations of behaviour may be in breach of the principles of natural justice and may not give the respondent the best opportunity to respond.
- The process to be followed is explained to the respondent e.g. that the allegations will be put to them and they will be given adequate time to respond; that any relevant witnesses will be interviewed in due course; and that the investigator will then make a finding based on the evidence.
- The respondent is informed that they may be represented by their union representative, or other support person, at each stage of the process.
- The respondent is informed of the purpose of any meetings that may be held.
- The respondent is provided with an opportunity to respond via documentation, an interview or a combination of both.
- The investigator and then in turn, the decision-maker, must act in good faith and without bias. To act without bias means the person conducting the investigation has no preconceived opinions, vested interests or prior personal involvement in the matter. This does not necessarily exclude a person from the same organisation as the respondent, from conducting an investigation or making a decision. However, there must not be any actual or perceived bias.
- A decision is based on the facts presented by the parties. To base a decision on the facts requires the decision-maker to consider only the information that is relevant to the matter. The onus of proof will generally lie with the party asserting a fact and the matter will be considered on a balance of probabilities.
7.2.2 What if the rules of natural justice are breached?
It is important to remember that a finding may be called to review if there are flaws in the complaints process or decision-making process. This may be because the investigator and/or decision maker:
- fails to comply with proper procedures;
- acts for the wrong purpose;
- exercises power in bad faith;
- fails to take into account relevant information; or
- considers irrelevant information or acts unreasonably.
Having to conduct another investigation because the first investigation was flawed, is not only traumatic and stressful for the parties involved, but also costly in terms of time and resources.
If breaches of the natural justice rules are identified before the investigation is completed and/or the outcome is decided, it may be possible to remedy the situation. For example, if new information emerges, this can be provided to the respondent for an opportunity to respond.
It should also be noted that review of actions, or dispute processes, may be available to the person aggrieved (unless the matter has been dealt with by a disciplinary process resulting in termination, in which case this may be dealt with through an unfair dismissal application to the Fair Work Commission).
Disclosures or complaints of sexual harassment will be treated in confidence in order to protect personal privacy to the greatest extent possible. It is important that the complainant be advised that their matter may need to be discussed, escalated or referred to other relevant persons. Only those who have a direct need to know should have access to information. These people might include (but are not limited to):
- HR (or equivalent) who are managing the complaint;
- the respondent to whom the allegation relates to;
- external bodes such as police or WorkSafe;
- the relevant decision-makers;
- an investigator engaged to investigate the allegations; and
- the complainant’s support person or representative.
7.3.1 Can complainants or witnesses remain anonymous?
In some situations, a complainant or witness may express a wish to remain anonymous. The need for anonymity may be reduced once the complainant and/or witness is informed of:
- the processes to be followed in handling their concerns;
- the principles of confidentially which apply; and
- any organisational policies and practices in place to protect them from victimisation.
It is important to note that disclosures of sexual harassment will be treated in confidence to the extent it is appropriate to do so. As allegations of sexual harassment or potential criminal conduct are serious, they may need to be escalated or referred without agreement of those involved, particularly in circumstances that may:
- constitute a criminal offence;
- constitute an occupational health and safety risk; and
- require disciplinary action.
7.4 Conflict of interest and Perception of Bias
In the first instance, organisations should refer to their organisational policies for guidance on conflict of interest and management of misconduct policy.
The principles of natural justice require that a person handling a misconduct complaint must act in good faith and without bias. It is important to ensure there is no reasonable perception of bias or a conflict of interest that could prejudice the final decision. This could arise where the person handling the complaint has a vested interest, a prior involvement in a matter or a personal relationship with either the complainant or respondent.
Where a conflict of interest or reasonable perception of bias is identified, appropriate steps should be taken to manage the conflict. This may include that all parties are informed of the circumstances giving rise to the conflict, through to arranging for another person to undertake the investigation, and/or to be the decision-maker in relation to the complaint.
In the first instance, organisations should refer to their organisational policy on management of misconduct which may provide guidance on victimisation.
Employers have a responsibility to ensure that employees are not victimised or treated unfairly because they have made a complaint of sexual harassment or have participated in a complaint process (such as a witness).
Victimisation occurs when a person is subjected to, or threatened with, any harm or damage for their involvement in the matter. It can include:
- bullying or intimidation by co-workers;
- being denied a promotion or being moved to a position with lower responsibility;
- dismissal from employment; and
- being refused further contract work.
Victimisation for making a complaint of sexual harassment is unlawful under the Equal Opportunity Act 2010 and federal anti-discrimination laws.
7.6 Standard of proof
In the first instance, organisations should refer to their organisational policy on management of misconduct which may provide guidance on the standard of proof.
When determining whether a complaint of sexual harassment has been proven, a finding must be based on the conclusion that it is more probable than not that the alleged matter did in fact occur. This is known as the ‘balance of probabilities’ and is the standard of proof required in civil cases. It is important to note the distinction that the person handling the complaint does not need to be satisfied ‘beyond reasonable doubt’ which is the standard of proof for criminal matters.
It should be noted that the standard of evidence required to meet the ‘balance of probabilities’ test will increase in accordance with the seriousness and consequences of the allegations. Where a serious allegation is made, reasonable satisfaction should not be produced by inexact proofs, indefinite witness statements or indirect inferences (Briginshaw v. Briginshaw  60 CLR 336).
7.7 Behaviour outside the workplace
Under the Codes of Conduct, Public Sector Employees must avoid conduct in their private life that may adversely affect their standing as a public official, or which may bring their Public Sector employer into disrepute.
As such, conduct that is apparently unrelated to the performance of duties may be a breach of the Codes of Conduct, if there is a clear and relevant connection between the employee’s out-of-hours conduct and its effect on the workplace. Of course, this must be balanced against the principle that a Public Sector employee has an entitlement to a private life outside of work.
Sexual harassment can extend beyond the usual workplace and outside normal working hours. For example, workplace sexual harassment can occur where there is a link to employment. This includes (but is not limited to) at social functions with the team/workplace; on social media platforms; on the telephone via call or text; via internet or fax; in vehicles while on the way to work functions or meetings or at after-parties to such events (regardless of their location).
7.8 Record keeping
In the first instance, organisations should refer to their organisational policy on management of misconduct or other applicable policy which may provide guidance on record keeping.
All correspondence with an employee/s in relation to a complaint of sexual harassment should be recorded. It is extremely important to keep all correspondence, and document all conversations and action taken to avoid any dispute between the parties, if a disagreement between versions of events arises.
Records should include:
- letters and emails (including any attachments);
- notes of telephone calls and conversations;
- the investigation report with all relevant evidence;
- any draft material provided to the employee for comment;
- the employee’s response to correspondence; and
- file notes of action taken in the process.
 As previously referenced, Industrial Relations Victoria is currently leading work on developing a standard set of procedures for managing misconduct through the cross-departmental Towards Common Practice Project’s Misconduct Working Group. When confirmed this work will provide further detail on standard of proof.
 For further detail the Model Policy for the Prevention of Sexual Harassment in the Workplace, is available at https://vpsc.vic.gov.au/resources/sexual-harassment-model-policy-vps-organisations/