Investigating harassment in the workplace

By Andrew Piper and Calum Woods, NRA Legal

Investigating an allegation of sexual harassment in the workplace can be one of the greatest challenges a HR professional or employer can face.

An allegation of sexual harassment in the workplace carries with it a number of significant implications. For the person making the complaint (or ‘complainant’), who may have already suffered a physical or psychological injury, there is the real possibility of retribution for having spoken out. For the person accused of sexual harassment (or ‘respondent’), in the case of vexatious complaints, the danger of personal and professional reputational damage cannot be understated.

For the investigator responsible for determining the truth of an allegation of sexual harassment, there is a risk that all of these concerns become realised as a result of their handling of the complaint. While care must be taken when conducting any kind of investigation, in the case of sexual harassment, the stakes are often much higher for all parties involved.

In the recent case of Evans v Ikkos Holdings Pty Ltd and Ythos Holdings Pty Ltd and Ikia Holdings Pty Ltd T/As Pasadena Foodland and Crugnale [2019] SAET 222, the employer suffered the consequences of failing to treat an allegation of sexual harassment with the level of diligence required by the law.

The ‘Juice Bar’ incident

The complainant and the respondent were both employed at Pasadena Foodland in South Australia. The complainant was employed at the store’s ‘Juice Bar’, and was responsible for producing fresh juice for customers. The respondent was employed as the Executive Head Chef and Food & Beverage Services Manager, having previously worked as the Head Chef of a restaurant, and worked only a few metres away from the complainant.

On 18 May 2017, the complainant told her supervisor that while she was working at the ‘Juice Bar’, the respondent pressed his body into her while walking past her workstation. She alleged that while attempting to convey an appearance of incidental contact, the respondent pressed his hand between her buttocks and his body. The complainant also separately raised her concerns with the employer’s HR Manager.

The supervisor and HR Manager reviewed store CCTV footage, however apparently did not find any conclusive evidence that supported the allegation. This was largely as a result of the angle of the camera, which did not have the perspective to determine whether contact had occurred. No further steps were taken by the employer at this time.

More than a month later, the complainant sought an update from the HR Manager on the progress of the investigation. He informed her that the CCTV evidence was inconclusive, and as such no further action had been taken.

Sometime later, the respondent confronted the complainant in the lunchroom about her speaking with other staff members about his conduct in the workplace. It was only once this incident was reported and investigated that a formal investigation into the initial allegation of sexual harassment commenced.

The matter was eventually escalated to the General Manager who met with the complainant and her union representative to discuss the allegation of sexual harassment. However, despite these further steps, the employer ultimately concluded that the allegations had not been made out and no further action would be taken against the respondent.

Flaws in the investigation

The complainant, aggrieved by the employer’s findings, made an application to the South Australian Employment Relations Tribunal, alleging that the employer was “vicariously liable” for a psychological disorder she suffered as a result of the sexual harassment.

Deputy President Judge Farrell identified numerous shortcomings with the employer’s investigation. The employer failed to record the initial complaint and to obtain further details from her concerning the allegation.

Her Honour highlighted the importance of taking detailed contemporaneous notes of interviews, and emphasised the importance of the fact-finding in a workplace investigation.

The supervisor and HR Manager also failed to assess the alternative means of determining the validity of allegation, by assuming that inconclusive CCTV footage was the decisive (and the only) evidence that they needed to consider. Moreover, the CCTV was automatically deleted after a period of time, and neither the supervisor nor the HR Manager had taken detailed notes of their assessment of the footage.

As such, when the matter was dealt with at hearing, only the witness evidence of the complainant and the respondent was available to the Court in relation to the incident. Perhaps unsurprisingly, the Court preferred the evidence of the complainant, and the incident was found to have occurred.

In South Australia (and most other states and territories), an employer may be vicariously liable for sexual harassment committed by their employees. A defence exists where the employer can demonstrate that they took “reasonable steps” to ensure that their employees would not act in contravention of the Equal Opportunity Act 1984 (SA).

For the purposes of that Act, “reasonable steps” may include having an appropriate sexual harassment policy, and promptly investigating any allegations in breach of the policy. While the employer did have a policy in place, and an investigation (at least in name) was carried out, her Honour was not convinced that the employer had taken “reasonable steps.” As such, the employer was found vicariously liable for the sexual harassment committed by the employee.

The complainant was awarded $30,000 in compensation.

Let’s get technical…

The investigation, which ultimately led to the employer being held vicariously liable for the conduct committed by the employee, had a number of critical flaws.

A more detailed interview with the complainant concerning the allegations would have given the investigators more evidence, enabling the investigation to continue past the point that the CCTV footage was found to be inconclusive.

Relevantly, there was a significant amount of circumstantial evidence in the case which should have been investigated, such as:

why the respondent was walking through the ‘Juice Bar’ repeatedly to use a bin when he had access to many bins in his own work area;
whether any other employees had witnessed the behavior or had experienced any similar interactions; and
whether there was sufficient space in that passageway for the respondent to pass without making physical contact.

The lack of a detailed witness statement from the complainant casts doubt on the extent to which the initial investigators knew precisely what kind of contact they were looking for. Her Honour suggested that allowing the complainant to view the CCTV footage would have been insightful for the investigation, as she could have identified particular instances or times to pay closer attention to.

The failure to interview potential witnesses prevented more evidence from being identified that supported or cast doubt on the complainant’s version of events. Perhaps the respondent was having similar interactions with other staff and similarly would have struggled to explain the frequency of “incidental” physical contact with them–these questions went unanswered during the investigation.

The rules of procedural fairness also required that the allegation be put to the respondent, and that he be given the opportunity to respond to the evidence against him.

Had the Court reached a different conclusion, an allegation of sexual harassment is extremely serious, and without having given the respondent the opportunity to respond, may have resulted in an unjust outcome.

The investigation was also weakened by the failure to inform the complainant that the initial investigation had concluded and that no conclusive evidence had been identified. This led to a delay escalating the matter for reconsideration by senior management. While the employer did, in fact, have a process for escalating such matters this was not followed by the supervisor nor the HR Manager.

What next?

This case highlights the importance of developing sound practices for investigating allegations made in the workplace.

At a minimum, an investigation should involve drafting detailed allegations, conducting interviews with any relevant witnesses, and allowing the respondent an opportunity to respond.

Workplace investigations can be complex and often engage a range of employment law rights and responsibilities, WHS obligations and the requirements of procedural fairness. To ensure that you are aware of the risks and are prepared to meet this challenge, the NRA’s next Workplace Investigations Masterclass in Sydney will equip you with the skills you need to avoid making these kinds of mistakes.

To speak with one of NRA’s workplace relations specialists today, call 1800 RETAIL (738 245).