This document is part of the Prevention of Sexual Harassment in the Workplace resource.

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 HR practitioners (or equivalent) 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. Natural Justice

(See section 7.2 of the Guide for Prevention of Sexual Harassment in the Workplace for detailed information)

Explanation

The rules of natural justice ensure that investigations and related decisions are fair and reasonable.

Your industrial agreement or misconduct policy is likely to have an explanation of relevant principles of natural justice which apply to your organisation.

Natural justice rules will help prevent employees being treated unfairly or unreasonably. They will also mitigate the risk of matters escalating.

Action

When considering an allegation, it is important that an organisation:

  • act in good faith and without bias.
  • base decisions on the facts presented by both parties.
  • be sure to give the employee the opportunity to present all relevant evidence.

When managing a complaint, organisations should consider:

  • informing the complainant and respondent under which policy the matter will be considered as that the complaint will be considered promptly and fairly.
  • inform the respondent of the specific allegations made against them and provide them with an opportunity to respond.
  • explain the process to be followed e.g. that the allegations will be put to them and they will be given a certain number of days to respond (in line with an organisation’s complaint process) and provide a copy of this process.
  • inform the complainant and respondent that they may be represented (noting that this could be a union representative and/or other support person).
  • inform the complainant and respondent of the purpose of any meetings that may be held.
  • provide the complainant and respondent with sufficient information to allow them a reasonable basis to respond.

Note: Should any of the above information be provided via face-to-face meeting, it is recommended that it be reiterated in writing via email.

2. Initial assessment

Explanation

Organisations should consider all complaints (including those which may initially appear to have no merit). This gives appropriate consideration to the sensitive nature of the subject area and affords respect to those involved.

Failure to treat all complaints seriously may exacerbate the problem and the liability.

Section 4 of the Guide for Prevention of Sexual Harassment in the Workplace provides detail on the various forms of sexual harassment. Relevant legislation and industrial instruments should also provide guidance.

Action

When considering an allegation, it is important that an organisation:

  • act in good faith and without bias.
  • base decisions on the facts presented by both parties.
  • be sure to give the employee the opportunity to present all relevant evidence.

When managing a complaint, organisations should consider:

  • informing the complainant and respondent under which policy the matter will be considered as that the complaint will be considered promptly and fairly.
  • inform the respondent of the specific allegations made against them and provide them with an opportunity to respond.
  • explain the process to be followed e.g. that the allegations will be put to them and they will be given a certain number of days to respond (in line with an organisation’s complaint process) and provide a copy of this process.
  • inform the complainant and respondent that they may be represented (noting that this could be a union representative and/or other support person).
  • inform the complainant and respondent of the purpose of any meetings that may be held.
  • provide the complainant and respondent with sufficient information to allow them a reasonable basis to respond.

Note: Should any of the above information be provided via face-to-face meeting, it is recommended that it be reiterated in writing via email.

3. Formal Investigation

Explanation

Should sufficient evidence be gathered to prompt a formal investigation, the relevant policy and procedure must be followed. Generally speaking, it is recommended that during the investigation, separate face-to-face interviews be conducted with the complainant, respondent and any witnesses, to gather pertinent information.

Action

In line with an organisation’s policy and procedures, the following steps should be considered, noting that each case should be considered on its merits and some variation may be appropriate. It is also important to recognise that the provisions within the relevant industrial instrument should be followed.

1. In the first instance, contact all parties to set up times and meeting locations. In doing so:

  • choose an appropriate location;
  • be flexible with scheduling to accommodate, within reason, the interview subject;
  • explain up-front what the discussion is about and why.

2. Gather pertinent information:

  • ask all parties to provide any emails, memos, and other relevant communications i.e. any notes, physical evidence, or other documentation regarding the incident(s) – ensure that you store this information securely.

4. Changes in the workplace while a complaint is considered

Explanation

A complainant is likely to feel vulnerable when making a complaint of sexual harassment. Organisations should ensure that a complainant is not required to have contact with a respondent while a matter is being considered, if this is likely to create a risk to health and safety.

Action

Determine, in accordance with the applicable enterprise agreement and misconduct policy, whether the following changes need to be implemented while considering the allegation:

  • change to operational reporting lines and team composition;
  • change to seating arrangements;
  • change to physical work location;
  • taking periods of approved annual or long service leave (if requested); or
  • suspension on pay.

Ensure that these changes do not result in any detriment to the complainant (as this may amount to victimisation, which is unlawful).