Managing harassment complaints

Analysis

Managing harassment complaints

Employers should take immediate and appropriate action when a harassment complaint is made by an employee.

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Employers should take immediate and appropriate action when a harassment complaint is made by an employee.

The obligation to investigate a harassment complaint does not only arise in circumstances where there is a ‘formal complaint’, but also where an employer has sufficient notice of conduct that warrants investigation.

Taking immediate and appropriate action will assist an employer in later defending a claim in a court or tribunals by an aggrieved employee. It could also assist an employer avoiding criticism from either the court or tribunal for delay or failure to manage a complaint. Further, it may assist an employer in escaping unwanted media attention arising from a complaint that has been poorly managed.

Appropriate action
 
Depending on the circumstances of the complaint, appropriate action may include conducting a formal investigation into the complaint.

This investigation may be conducted by the employer itself or an independent third person.

When investigating complaints of harassment, it is important to afford procedural fairness to both the aggrieved employee and the accused (to do otherwise can suggest pre-judgement or bias).

The approach taken in the investigation will depend on the employer’s specific grievance procedure but will generally include provisions keeping allegations confidential (so far as possible), the ability to bring a support person to any interview, and that victimisation of a person who has either made a complaint, is a witness, or is the subject of the complaint, is prohibited.

If the complaint is taken further by an aggrieved employee, for example, to the Australian Human Rights Commission, an employer who has taken immediate and appropriate action in response to a harassment complaint will be in a better position to defend such a claim, even in circumstances where the alleged unlawful harassing conduct has occurred. It may even be possible for an employer to avoid being found liable for the unlawful actions of its employees, on the basis the employer took all reasonable steps to prevent the accused employee(s) from engaging in the alleged conduct.

Reasonable steps for employer to take

Reasonable steps an employer can take generally include:
  • having an adequate discrimination and harassment policy in place
  • having an adequate grievance procedure in place
  • making its policies generally accessible to all employees in the workplace
  • training its employees on the contents of the policies
  • enforcing its policies and taking action where a breach arises
  • taking immediate and appropriate action when a harassment complaint is made
  • supervising and monitoring the workplace.

HR Tip

An employer who has managed an harassment complaint by taking immediate and appropriate action is better placed to not only resolve the complaint, but also to defend a complaint if it is taken to a tribunal or court, by demonstrating the ‘reasonable steps’ it has taken.

Source: HR Advance Legal Team

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