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 Management of misconduct under the Victorian Public Service (VPS) Agreement

The key considerations set out in this guide are not intended to supersede the process for managing misconduct established by the Management of Misconduct provision in the VPS Agreement. Supervisors and managers, in consultation with HR practitioners (or equivalent), will be required to treat all allegations of sexual harassment against employees covered by the VPS Agreement in accordance with the VPS Agreement process, including any investigation or determination of a disciplinary outcome.

While the VPS Agreement covers the majority of employees, there are other enterprise agreements that cover VPS employees and these agreements will also contain misconduct provisions that set out the process for responding to allegations made against employees covered by those enterprise agreements.

7.2 Natural justice

When considering a report, 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 reporting 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).

7.3 Confidentiality

Disclosures of sexual harassment will be treated in confidence in order to protect personal privacy to the greatest extent possible. It is important that the wishes of the person who has made a report and others involved in the reporting process are considered when making decisions concerning confidentiality. The person who has made a report should 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 report;
  • 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 person who has made a report support person or representative.

Advice may be sought from local privacy contacts prior to the release of material that may contain personal details.

Organisations should use non-disclosure agreements (NDAs) or deeds of separation sparingly –  for example, when a person who has made a report has requested confidentiality around their experience. When a decision is made to use an NDA, it should be carefully tailored.

Employers should consider drafting NDAs in such a way that:

  • provides ‘carve-outs’, which permit the person who has made a report to speak to some third parties, such as a medical professional, or a relevant regulator or authority (such as VEOHRC); and
  • tailors the confidentiality clause to only prohibit certain disclosures.

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7.3.1 Can people who have made a report or witnesses remain anonymous?

In some situations, a person who has made a report or witnesses may express a wish to remain anonymous.  The need for anonymity may be reduced once the person who has made a report 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.

The Victorian Equal Opportunity and Human Rights Commission’s Guideline: preventing and responding to sexual harassment outlines steps employers can take when responding to anonymous reports.

These include:

  • recording the report in a de-identified way while ensuring the confidentiality of the person who has made a report;
  • reiterating to all staff the organisation’s sexual harassment policy, reporting procedure and available supports, and inviting staff to make reports;
  • monitoring the alleged respondent’s behaviour and intervening if new issues arise;
  • speaking with other members of the alleged respondent’s team to identify whether there is a cultural issue or pattern of conduct, or surveying staff more broadly;
  • monitoring closely to ensure victimisation does not occur and intervening where issues arise;
  • having a system to collect de-identified information and data provided by disclosures, while maintaining confidentiality; and
  • implementing new procedures or work systems that reduce the likelihood or opportunity for further harassment.

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 report 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 report has a vested interest, a prior involvement in a matter or a personal relationship with either the person who has made a report 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 report.

7.5 Victimisation

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 report of sexual harassment or have participated in a reporting 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 report of sexual harassment is unlawful under the Equal Opportunity Act 2010 and federal anti-discrimination laws. Victimisation can constitute detrimental action and create an offence under the Public Interest Disclosures Act 2012. Related remedy for detrimental action is available through Fair Work Australia. Such behaviours may also be misconduct under the relevant industrial instrument.

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 report 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 report 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 [1938] 60 CLR 336).

7.7 Investigating allegations with no independent witnesses

By its nature, sexual harassment may often occur where there are no independent witnesses.

An organisation’s decision to not conduct or substantiate an allegation should not solely be on the basis that there was no independent witness.

Where allegations of sexual harassment are made, without independent witnesses, they should be treated as seriously as other allegations and with the same respect, understanding and concern for the well-being of the person who has made a report as other allegations.

Those responsible for investigating reports should consider all available evidence and sources of information that may corroborate that the incident did or did not occur. Evidence that may be relevant includes:

  • evidence that the person who has made a report discussed their concerns with a family member, friend, co-worker, medical practitioner or counsellor;
  • supervisor’s reports and personnel records (for example, unexplained requests for transfer or shift changes, sudden increase in sick leave);
  • reports or information provided by other employees about the behaviour of the alleged respondent;
  • records of the alleged harassment kept by the person who has made a report;
  • whether the evidence was presented by the parties in a credible and consistent manner; and
  • the absence of evidence where it should logically exist.

While each of the above elements of themselves does not substantiate an incident actually occurred, it may build a picture that corroborates the person who has made a report account to the requisite standard of proof outlined in 7.6.

Even if the matter cannot be substantiated, continuing to investigate matters may identify behaviours or actions (short of misconduct) that warrant further investigation or remedial action to prevent incidents of sexual harassment occurring in the future and demonstrate to employees that the organisation takes matters seriously and will act on inappropriate workplace behaviours.

Where an allegation of sexual harassment cannot be substantiated, it is paramount that the organisation actively takes steps to promote the well-being of the person who has made a report. How the person who has made a report feels throughout and at the conclusion of an investigation, particularly if the allegation is not substantiated, may impact future reporting behaviour and the person who has made a report’s long-term well-being and intention to stay at the organisation. It is important that the person who has made a report’s well-being is prioritised, and they are offered support with services such as the EAP.

7.8 Sharing information at the conclusion of an investigation

What and how much information can be provided to parties at the conclusion of an investigation requires organisations to weigh the rights and interests of the person who has made a report against that of the respondent.

During a reporting process, privacy of all involved is paramount. At the beginning of the reporting process all persons involved in the process should be made aware of how the matter will be dealt with and what information can and will be provided throughout the process to relevant persons.

Organisations may also provide the person who has made a report with other information as is reasonably practicable, while observing confidentiality and privacy obligations. The interests and rights of the person who has made a report to know that their report has been dealt with appropriately should be balanced against the interests and rights of the respondent.

Generally, if reasonably practicable and appropriate, the following information should be provided to the person who has made a report:

  • whether an investigation was conducted
  • if the matter was not investigated, why not.

If the matter was investigated, they should be given information about:

  • the nature of the report investigated;
  • any allegations substantiated in relation to the report;
  • whether a discipline outcome was applied;
  • where reasonable and appropriate, what, if any, discipline outcome was applied; and
  • any further recommendations/action taken.

A decision on the types of information provided should have regard to the organisation’s privacy obligations, the need to treat allegations confidentially (for the sake of both the respondent and the person who has made a report), occupational health and safety obligations, and to ensure other investigations (for example an investigation being undertaken by Victoria Police or the Independent Broad-based Anti-corruption Commission (IBAC)) are not prejudiced. Any information shared must also be consistent with the relevant obligations in industrial instruments. Where criminal or external investigations are on foot the organisation should seek advice from the external agency about what can be shared and the types of information that can or should be provided.

At the conclusion of any investigation, where the organisation communicates the outcome to a person who has made a report, they should also advise the person who has made a report the spirit in which the information has been provided to them as well as any confidentiality obligations that exist for the person who has made a report.

Organisations should also avoid excessive disclosures of personal information, and only share what is necessary for the purposes of handling and resolving the report. For more information, read Privacy in the Workplace from the Office of the Victorian Information Commissioner.

7.9 Behaviour outside the workplace

Under the Codes of Conduct, Victorian 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).

For more detailed information read the Victorian Equal Opportunity and Human Rights Commission’s Guideline: preventing and responding to sexual harassment.

7.10 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 report 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.

7.11 Reporting allegations to external agencies/authorities

Some forms of sexual harassment are also criminal offences. Criminal offences include stalking, sexual assault, common assault, indecent exposure, threatening conduct and using a telephone or communication medium to harass, threaten or annoy.

If an organisation suspects that a criminal incident has occurred, the organisation is required to report the matter to the appropriate external agencies/authorities (for example, Victoria Police). Organisations should have a checkpoint during the reporting process to determine whether the organisation needs to report the alleged sexual harassment to Victoria Police.

Where the person who has made a report expressly requests the organisation not report the potential criminal conduct to the police, the employer should carefully balance the wishes of the person who has made a report with its intent to ensure allegations of criminal matters are reported to the appropriate authority.

In instances that require mandatory reporting, for example, allegations involving minors, these cases must be reported in line with the relevant obligations on employers.

Further, some organisations are bound by specific mandatory reporting obligations. For example, the Victoria Police Act 2013 states that police employees must report suspected misconduct (including sexual harassment) by another police employee. Similarly, registered health practitioners must report sexual misconduct by another registered health practitioner. Organisations may wish to seek legal advice on mandatory reporting obligations.

Where reporting is not mandatory, a victim-centric approach that prioritises the wishes of the person who has made a report should be adopted. The person who has made a report should be reminded of their right to report the matter to the appropriate external agency/authority (for example, Victoria Police) and be provided with any necessary support and assistance to help them do so. This can extend to the employer providing notes, employee records and other relevant information that may provide evidence of the commission of a criminal offence. Advice may also be sought from Victoria Police or the relevant authority to help the person make a report in a supportive and confidential manner.

In the event that the organisation does not report a potential criminal matter to the appropriate authority, the organisation should also document the rationale for not referring potential criminal allegations to Victoria Police (or other appropriate body). Employers must also consider the risk to other workers and take action to eliminate, or minimise, that risk as far as possible.

Upon making a report to an external agency, advice should be sought from the external agency/authority in relation to what level of information can be provided to the person who has made a report and at what stage.

When investigating matters which may also be criminal conduct, organisations must ensure that their actions will not prejudice any current or future criminal investigations, but also protect staff from further harassment.

Organisations or managers overseeing a sexual harassment report should speak with their HR area for advice on individual matters, as each matter must be considered on its merits. Organisations may also wish to consult with Victoria Police or obtain legal advice on whether the matter should be referred to Victoria Police.

An employment-related report does not prevent a person who has made a report from making a separate or later report to Victoria Police or an external agency, such as WorkSafe. Similarly, an organisation cannot stop or dissuade a person who has made a report from making a police report.

 

Reviewed 27 September 2022

Published 24 June 2022