The VPSC acknowledges that organisations will have a range of approaches to managing reports of sexual harassment. Some organisations will have a specific process for sexual harassment. Others will use existing reporting processes designed to manage a range of workplace matters including misconduct, performance and sexual harassment.
Some public sector employers are bound by mandatory reporting of suspected workplace misconduct. This includes sexual harassment. Reporting suspected workplace misconduct can constitute a Public Interest Disclosure (PID) under the Public Interest Disclosures Act 2012.
Neither the Equal Opportunity Act 2010 nor the Sex Discrimination Act 1984 specifies how a reporting process should be structured. However, a reporting process should allow for flexibility to deal with reports in line with an organisation’s size, structure and resources. The reporting process should also prioritise staff well-being and support. All Victorian Public Sector reporting processes must link to relevant industrial and contractual instruments.
Regardless of the structure of the reporting process, it is recommended that organisations ensure that multiple avenues are available to address barriers to reporting. For example, via email, phone, in person, or anonymously through assigned workplace contact officers.
To comply with minimum standard 5 in the Victorian Equal Opportunity and Human Rights Commission’s (VEOHRC) sexual harassment guideline, employers should implement a reporting procedure that commits to the following fundamental principles of fair and sensitive report handling:
- Confidentiality – during the process, only those who need to know should know.
- Timeliness – action should be taken as soon as reasonably possible, but definitely within two weeks. All parties should be kept updated.
- Supported – the process should be victim-centric, while including the right to a support person for both the person who has made a report and the respondent, and providing referrals for additional support.
- Right of reply – parties should be provided with sufficient details of any allegations against them, and can make representations and counter-claims during the process and appeal decision.
- Fairness – the process should be impartial and any workplace action (both disciplinary and non-disciplinary action) should be reasonable and proportionate, with the respondent held to account.
Organisations can also refer to VEOHRC’s step-by step guide to responding to reports.
6.1 Reporting sexual harassment at work
Those who have experienced sexual harassment can make a report in a number of ways. This includes making a report internally, to their manager, a HR practitioner (or equivalent), or to an external body. Making an internal report at work does not preclude a person from also making an external report and vice versa.
External bodies that can consider a report of sexual harassment include:
- Victorian Equal Opportunity and Human Rights Commission
- Victorian Civil and Administrative Tribunal (VCAT)
- The Federal Court of Australia
- Australian Human Rights Commission.
A person may also make a report to WorkSafe or through internal safety reporting mechanisms as sexual harassment can constitute occupational violence. A claim of sexual harassment may also form part of a sex discrimination claim under the Fair Work Act 2009’s general protections provisions, or as part of a negligence/personal injury claim.
A person may also make a report to Victoria Police if the sexual harassment constitutes criminal conduct, such as sexual assault or stalking. Victoria Police may not always be the relevant agency to contact when making a sexual harassment claim. For example, should sexual harassment occur on an interstate trip, it may (but not always) be more appropriate for the complainant to contact the relevant police agency in that state or territory.
6.1.1 Responding to sexual harassment
The tone of the first response to a report of sexual harassment is very important. It is paramount that the person who has made a report is supported and treated with respect, understanding and concern. This approach ensures that experiences are not trivialised or downplayed, and that victim blaming is avoided. Employee and well-being support services (such as an organisation’s Employee Assistance Program) should be offered to a person who has made a report to ensure they have independent professional support during the process.
People who have made a report may be deterred from reporting sexual harassment due to fears of severe consequences for the respondent. Employees should be made aware that coming forward and making a report may not necessarily result in launching a formal investigation, and that the organisation will strongly consider the wishes of the person who has made a report. Additionally, should an investigation be conducted, there are a range of potential disciplinary outcomes available under the Management of Misconduct provision in the Victorian Public Service Enterprise Agreement and the consequences for the respondent are not necessarily severe. Knowing that there are a range of disciplinary outcomes may encourage employees to come forward and make a report.
Given the highly sensitive nature of sexual harassment, organisations are encouraged to consider the processes listed in the checklist for managers and practitioners in the Appendices.
This checklist provides prompts to support managers and HR practitioners (or equivalent) to respond appropriately and consistently when approached with a report of sexual harassment. These steps have been designed to be followed regardless of whether the report is made to the person who has made a report direct manager, a different manager or any other designated officer i.e. HR practitioners (or equivalent).
Certain aspects from the table (such as those that relate to natural justice and confidentiality) are further explained in other sections in this guide. Refer to sections 7.2 Natural justice and 7.3 Confidentiality respectively.