By Catherine Ngo Senior Editor and Content Writer, My Business

Due to the recently implemented positive duty, it is an opportune time to re-examine your company's procedures for investigating sexual harassment cases. The Australian Business Lawyers & Advisors recently conducted an insightful session on the latest legal developments and provided practical strategies for conducting effective investigations. 

You can watch the webcast replay here. We've summarised some of the key takeaways below.

 

A RECAP ON THE CHANGES: HOW CAN YOU ENSURE COMPLIANCE WITH THE NEW 'POSITIVE DUTY' OBLIGATIONS AROUND SEXUAL HARASSMENT, SEX-BASED HARASSMENT AND OTHER RELATED UNLAWFUL BEHAVIOUR?

In response to the ongoing issue of sexual harassment in Australian workplaces, the Federal Government implemented legal changes in late 2022. These changes, aligned with the Sex Discrimination Commissioners Respect@Work Report, provide new avenues for employees to seek redress and grant the Human Rights Commission the authority to enforce the latest "positive duty" on employers. The changes came into effect on 12 December 2023.

The new laws impose a "positive duty" on all employers, regardless of business size. Every business owner must take reasonable measures to prevent sexual harassment and other unlawful behaviour in the workplace. Simply responding to complaints after they arise is no longer sufficient.

Under this law, there are no exemptions, not even for small businesses. Employers who fail to take reasonable steps to eliminate sexual harassment and related unlawful behaviour in the workplace could face legal liability, substantial financial penalties, and damage to their business reputation.

Under the Sex Discrimination Act, organisations and businesses now have a positive duty to eliminate, as far as possible, the following unlawful behaviour from occurring:

  • discrimination on the grounds of sex in a work context    
  • sexual harassment in connection with work
  • sex-based harassment in connection with work
  • conduct creating a workplace environment that is hostile on the grounds of sex
  • related acts of victimisation.

 

WHAT CONSTITUTES 'REASONABLE STEPS' TO PREVENT AND ADDRESS SEXUAL HARASSMENT IN THE WORKPLACE?

To avoid legal liability, employers must demonstrate that they have taken all reasonable and proportionate measures to:

  • Eliminate sexual harassment and related unlawful behaviour from occurring in the workplace.
  • Respond appropriately to resolve reports or disclosures of sexual harassment and other unlawful behaviour if they arise.

"Reasonable" steps may vary depending on factors such as the size of the business, available resources, and the cost of implementing specific preventive measures.

Employers of all sizes must take proactive steps to prevent sexual harassment in the workplace before it occurs. Failure to do so may result in legal consequences. Ignorance of the law is not a valid defence, and regulatory authorities will pursue non-compliance.

 

THE IMPORTANCE OF INVESTIGATING SEXUAL HARASSMENT CASES

There are several significant reasons why properly investigating sexual harassment allegations is crucial:

1. Fact-Finding: The primary objective is to conduct a thorough investigation and gather all relevant facts about the alleged incident.

2. Respect for the Complainant: Employers demonstrate respect for the individual who has made the complaint by conducting a thorough investigation.

3. Employee Confidence Building: A fair and impartial investigation instils confidence in employees that their concerns will be taken seriously and addressed with appropriate action.

4. Procedural Fairness for Respondents: The investigation ensures that respondents are treated fairly and can respond to the allegations against them.

5. Mitigating Legal Risks: Conducting a thorough investigation can help reduce costly litigation. The regulators will scrutinise whether the employer investigated and the process used in an enquiry.

 

WHAT IF CONCERNS ARE RAISED ANONYMOUSLY? 

When allegations of sexual harassment are raised anonymously, employers must take them seriously and investigate them thoroughly. Failure to act on anonymous concerns can reflect poorly on the employer, as it may be perceived as a lack of commitment to addressing workplace issues. Regulators will also evaluate the measures taken by the employer to address such matters.

There are several reasons why employees may choose to raise concerns anonymously. They may fear retaliation, feel uncomfortable speaking up directly, or believe their concerns will not be taken seriously if identified. Employers must create a culture and environment where employees feel safe and comfortable raising concerns, regardless of whether they choose to do so anonymously.

 

WHO SHOULD INVESTIGATE THE CONCERNS?

When investigating disclosures of sexual harassment, it is crucial to select an impartial investigator. The appointed individual should be dedicated to uncovering the truth and possess strong communication skills. They should also demonstrate the ability to handle such matters sensitively and meet the standard 'reasonable person test'.

 

TIPS WHEN INTERVIEWING THE REPORTER

1. Use a person-centred approach and trauma-informed approach:

  • Build rapport and trust with the reporter by creating a safe and supportive environment.
  • Respect the reporter's personal space and boundaries.
  • Avoid using leading or suggestive questions.
  • Be patient and allow the reporter to tell their story in their own time.
  • Be aware of the reporter's emotional state and offer support when needed.

2. Consider the interview questioning style and location of the interview:

  • Choose an interview-style appropriate for the reporter's needs and preferences.
  • Consider the interview's location and ensure it is a private and comfortable setting.
  • Be mindful of the time of the interview and avoid scheduling it during a time when the reporter may be stressed or overwhelmed.

3. Maintaining confidentiality:

  • Inform the reporter of the confidentiality of the interview.
  • Protect the reporter's identity, such as using pseudonyms or initials.
  • Store interview recordings and notes securely.

4. Be mindful not to victimise:

  • Avoid asking questions that may be re-traumatising for the reporter.
  • Respect the reporter's privacy and avoid asking questions unrelated to the incident.
  • Offer support and resources to the reporter and let them know they are not alone. 

 

TIPS FOR ENGAGING WITH RESPONDENTS

When dealing with respondents, it is essential to consider the following factors:

  • Do they need to be suspended? Suspension is a serious step that should only be taken if there is a risk that the respondent will interfere with the investigation or threaten themselves or others.
  • Create a robust letter of allegation that details specifics. The allegation letter should set out the allegations against the respondent and provide sufficient detail to allow them to respond meaningfully.
  • Respondents may come across as ignorant, defensive, or aggressive. It is essential to be prepared for the possibility that the respondent may react negatively when confronted with the allegations. They may try to deny the allegations, minimise their actions, or even become aggressive. It is essential to remain calm and professional in the face of such reactions.

Remembering that the respondent has the right to representation is also important. They may be represented by a union representative, a lawyer, or another individual of their choice. By following these tips, you can help create a procedurally fair process.

 

OVER TO YOU

It is crucial to undertake a thorough health check within your business now to identify potential risk areas and implement proactive measures that will minimise the likelihood of sexual harassment, sex discrimination, sex-based harassment, a hostile work environment, or victimisation in your workplace. Part of this involves ensuring that all reports of sexual harassment are thoroughly investigated.

The Australian Business Lawyers & Advisors have developed a user-friendly toolkit to guide your business through six straightforward steps. Each step is accompanied by a collection of tools, templates, and concise videos for your convenience.

To find out more and to get this toolkit, visit the Australian Business Lawyers & Advisors website.