Dominic is the CEO of Lawpath, dedicating his days to making legal easier, faster and more accessible to businesses. Dominic is a recognised thought-leader in Australian legal disruption, and was recognised as a winner of the Australian Legal Innovation Index and recently a winner of the LexisNexis 40 Under 40 (APAC).
š”Ā Key insights
- Employers in Australia can be held legally responsible if they fail to properly investigate a sexual harassment complaint made by an employee.
- A failure to investigate may include not getting a full account from the complainant, not putting the complaint to the alleged harasser, not interviewing relevant witnesses, or treating the complaint with inadequate seriousness.
- If a tribunal or court finds the investigation was insufficient, the employer may be liable to provide compensation to the complainant.
- To avoid liability, employers should maintain clear harassment policies, have a robust complaints process, investigate promptly and thoroughly, and document all steps and findings.
A Queensland tribunal recently found an employer was liable after it failed to properly investigate a sexual harassment claim brought by one of its employees. (McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 (13 May 2013))
The case involved a sexual harassment claim made by a food and beverage attendant against a chef with whom she worked. The attendant claimed the chef had made derogatory comments to her over a number of days and made growling noises in her ear and around her neck.
The tribunal was very unimpressed with the way in which the investigation was conducted. The HR Manager who conducted the investigation was criticised for:
- Failing to obtain a full account of events from the attendant.
- Not putting the attendantās account to the chef (the first time her version of events was put to him was at the hearing).
- Not advising the attendant that an investigator had been appointed.
- Not interviewing other witnesses said to be present when some of the derogatory comments were made.
The employerās response to the complaint and its subsequent investigation were described as āinept and unprofessionalā, and the employer was ordered to pay the attendant $35,490 by way of compensation.
Take claims of workplace harassment seriously
This unfortunate example serves as a reminder for employers when dealing with a complaint by an employee:
- Ensure you have clearly communicated workplace policies that set out what constitutes acceptable and unacceptable behaviour.
- Have a clearly communicated complaints process in place to deal with complaints about breaches of these policies.
- Consistently follow the complaints process.
You cannot always control how your employees behave; but if you fail to follow up complaints of harassment in a professional manner, it could cost you dearly.
Christine Broad, Solicitor, BlandsLaw
