The risk of rushing it

With the positive duty to prevent workplace sexual harassment, organisations are understandably anxious to take prompt action when they receive a complaint.  It can be tempting to hurry towards putting the allegations to the other person in an attempt to “deal” with the matter in a timely way.  A decision of the Fair Work Commission provides useful reminders on the risk of rushing it.

What happened?

A female staff member raised concerns that her male colleague had instigated a sexually explicit conversation, displayed explicit images and made lewd remarks during two incidents. He was stood down, there was an investigation and his employment was terminated. The FWC said he had been unfairly dismissed and ordered reinstatement and back pay, deciding that the findings of the investigation were flawed.

What went wrong?

In short, the investigation process was deficient.  The FWC noted:

• The complainant was interviewed in front of the other witness she named.

• The respondent was required to respond to the allegations before relevant information had been verified, making the allegations

  unclear.  He was not given any further chance to respond, even after further evidence which supported him was identified.

• Witnesses put forward by the respondent were not interviewed.

• Relevant data and records were not reviewed.

Tips for employers

Making decisions based on flawed investigation findings is a disservice to the organisation and both people concerned.  To avoid that:

• HR professionals should be supported by ensuring that their (often considerable) other work demands do not prevent them from having sufficient time and capacity to conduct the investigation in a systematic and thorough manner.

• Allegations should be carefully and precisely drafted based on verified information to enable the person a fair chance to respond.

• Be mindful that there are legal risks and responsibilities towards both staff members when a complaint of sexual harassment has been made. 

• Ensure that the investigator has the technical expertise needed to apply the correct standard of proof when assessing the evidence, so that findings are reached which can be relied on by decision makers.