Effectively preventing and responding to sexual harassment: A Code of Practice for Employers
Chapter 7: Complaint procedures
Contents
Key points
7.1 What is a good complaints procedure?
(a) Informal complaint procedures
(b) Formal complaint procedures
7.2 Developing sexual harassment complaint procedures
(a) Reporting to management
(b) Complaints officers
(c) Sexual harassment contact officers
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Key points
- Employers should establish internal procedures for dealing with sexual harassment complaints or grievances to encourage in-house resolution. The Sex Discrimination Act does not prescribe any particular type of complaint procedure so employers have the flexibility to design a system that suits the organisation’s size, structure and resources.
- Employers can establish a specific procedure for sexual harassment complaints or, alternatively, use the procedure that is already in place for other types of work-related grievances. However, sexual harassment complaints may be complex, sensitive and potentially volatile. Anyone who has responsibility for dealing with them will require specialist expertise and should receive appropriate training.
- Employers should ensure that their organisation’s complaint
procedures:
- are clearly documented
- are explained to all employees
- offer both informal and formal options
- address complaints in a manner which is fair, timely and confidential
- are based on the principles of procedural fairness
- are administered by trained personnel
- provide clear guidance on internal investigation procedures and record keeping
- advise a complainant that they can pursue the matter externally with the Commission, a state or territory anti-discrimination body and, if it appears to be a criminal matter, the police
- give a clear undertaking that no employee will be victimised or disadvantaged for making a complaint
- are regularly audited and reviewed for effectiveness.
- A person who has been subjected to sexual harassment can make a written complaint to the Commission (or the relevant state or territory anti-discrimination agency). The complaint will be investigated and the Commission will generally endeavour to settle it by conciliation. If conciliation is unsuccessful or inappropriate in the circumstances the complaint may be terminated and the complainant can then apply to the Federal Magistrates Court or Federal Court of Australia for judicial determination. See Appendix A for more information about complaints to the Commission.
- A person is not required to attempt to resolve a complaint within the workplace before approaching the Commission or the relevant state or territory anti-discrimination agency. Criminal acts such as assault may also be reported directly to the police.
7.1 What is a good complaints procedure?
As part of the legal responsibility to deal with sexual harassment, all employers must implement effective, accessible complaint procedures for employees and other workplace participants. A good complaint procedure:
- conveys the message that the organisation takes sexual harassment seriously
- can prevent escalation of a case and maintain positive workplace relationships
- ensures that complaints are dealt with consistently and in a timely manner
- reduces the likelihood of external agency involvement which can be time consuming, costly and damaging to public image
- alerts an organisation to patterns of unacceptable conduct and highlights the need for prevention strategies in particular areas
- reduces the risk of an employer being held liable under the Sex Discrimination Act and other anti-discrimination laws
- can help to minimise the harm suffered by the person harassed
- reduces the risk of the employer being held to have treated the alleged harasser unfairly, such as in an unfair dismissal claim.
The Sex Discrimination Act does not prescribe any particular type of procedure, so employers have the flexibility to design a system that suits the organisation’s size, structure and resources. Employers can establish a specific procedure for sexual harassment complaints or, alternatively, use the procedure that is in place for other types of employee complaints. Because of the variables that can arise in sexual harassment cases, it is advisable to offer both informal and formal mechanisms for dealing with complaints.
Sexual harassment complaints may be against a senior member of staff who has managerial or supervisory authority over the complainant, or they may involve a co-worker at the same or a more junior level. They may be about individual or group behaviour. The allegations might be extremely serious or relatively minor, but annoying and unacceptable nonetheless. Complaints may be about a single incident or a series of incidents. The parties may be angry, distressed or anxious. Other issues or grievances may form part of the overall context of the complaint. The alleged harasser may admit to the allegations or emphatically deny them. A complex investigation may be required or the matter may be resolved quickly and informally with minimal third party intervention.
Given the sensitivities and complexities around sexual harassment complaints, they can be difficult for employers to manage, whatever their size or level of resources. However, there are sensible steps that employers should take in advance to manage complaints and minimise potential liability. This section sets out some of those steps.
This section refers to principles of procedural fairness. Procedural fairness (also known as natural justice) is a concept of administrative law. Employers should observe these concepts in devising and implementing sexual harassment policies.
Principles of procedural fairness and natural justice require that the alleged harasser be fully informed of the complaint made against them and given an opportunity to respond. Likewise, the person harassed should be fully informed of that response or allegations made against them by the alleged harasser and given an opportunity to respond. What is fair and just may differ between different circumstances, but there are three basic requirements:
- The parties must be given notice of the complaint or allegations against them, and the process by which it is proposed the matter will be resolved.
- The parties must be given the opportunity to be heard and respond to the complaint or allegations.
- The decision-maker must act impartially, honestly and without bias.
The Australian Human Rights Commission complaints process is further discussed at Appendix A.
Small businesses should refer to Section 8.
(a) Informal complaint procedures
Informal procedures emphasise resolution rather than factual proof or substantiation of a complaint. Informal ways of dealing with sexual harassment can include the following actions.
- The individual who has been harassed wants to deal with the situation themselves but may seek advice on possible strategies from their supervisor or another officer such as the sexual harassment contact officer, EEO officer, industrial relations manager or human resource personnel.
- The individual who has been harassed asks their supervisor to speak to the alleged harasser on their behalf. The supervisor privately conveys the individual’s concerns and reiterates the organisation’s sexual harassment policy to the alleged harasser without assessing the merits of the case.
- A complaint is made, the harasser admits the behaviour, investigation is not required and the complaint is resolved through conciliation or counselling of the harasser.
- A supervisor or manager observes unacceptable conduct occurring and takes independent action even though no complaint has been made.
Informal action is usually appropriate where:
- the allegations are of a less serious nature but the individual alleging the behaviour wants it to cease nonetheless
- the individual alleging the behaviour wishes to pursue an informal resolution
- the parties are likely to have ongoing contact with one another and the
complainant wishes to pursue an informal resolution so that the working
relationship can be sustained.
An employee should not be required to exhaust informal attempts at resolution before formal action commences. Employees have the right to formalise their complaint or approach an external agency, such as the Commission at any stage.
(b) Formal complaint procedures
Formal procedures focus on proving whether a complaint is substantiated. They usually involve:
- investigation of the allegations
- application of the principles of procedural fairness
- making a finding as to whether the harassment occurred
- submitting a report with a recommended course of action to the appropriate decision-maker (senior management)
- implementation of an appropriate outcome.
Formal procedures are usually appropriate where:
- informal attempts at resolution have failed
- the complaint involves serious allegations of misconduct and informal resolution could compromise the rights of the parties
- the complaint is against a more senior member of staff
- the person alleging sexual harassment also alleges victimisation
- the allegations are denied, the person who claims to have been harassed wishes to proceed and investigation is required to substantiate the complaint
- the person alleging sexual harassment wishes to make a formal complaint.
To ensure consistency and fairness, employers should document the steps involved in a formal complaint and clearly inform the parties about the processes involved in considering a complaint in advance. The usual sequence of events is that:
- the complainant is interviewed and the allegations are particularised in writing
- the allegations are conveyed to the alleged harasser in full
- the alleged harasser is given the opportunity to respond and defend themselves against the allegations
- if there is a dispute over facts, statements from any witnesses and other relevant evidence are gathered
- relevant allegations made during the investigation are made known to both the complainant and alleged harasser, with an opportunity to respond
- a finding is made as to whether the complaint has substance
- a written report documenting the investigation process, the evidence, the finding and a recommended outcome/s is submitted to the decision-maker
- the decision-maker implements the recommended outcome/s or decides on an alternative course of action.
The parties should be permitted to have a union official, support person, advocate or other representative accompany them to any interviews or meetings.
A formal complaint should not be dismissed on the ground that no one saw or heard the incident/s occur. Given the nature of the conduct, there are often no direct witnesses to acts of sexual harassment. Those responsible for investigating complaints should consider all available evidence, including any surrounding evidence, and make their finding on the balance of probabilities, that is, that it is more probable than not that the harassment did or did not occur. It is important to note that even if there is not enough evidence for a complaint to be substantiated, it does not mean that the discrimination did not occur or that the complainant is a liar. Findings may be that harassment did or did not occur, or that it was not possible to make a conclusive finding.
Evidence that may be relevant includes:
- evidence that the person alleging harassment discussed his or her concerns with a family member, friend, co-worker, medical practitioner or counsellor
- supervisor’s reports and personnel records (for example, unexplained requests for transfer or shift changes, sudden increase in sick leave)
- complaints or information provided by other employees about the behaviour of the alleged harasser
- records kept by the person claiming to have been harassed
- whether the evidence was presented by the parties in a credible and consistent manner
- the absence of evidence where it should logically exist.
Outcomes can include any combination of the following:
- counselling
- disciplinary action against the harasser (such as demotion, transfer, suspension, probation or dismissal)
- official warnings that are noted on the harasser’s personnel file
- disciplinary action against the person who complained if there is strong evidence that the complaint was vexatious or malicious
- formal apologies
- conciliation/mediation conducted by an impartial third party where the parties to the complaint agree to a mutually acceptable resolution
- reimbursing any costs associated with the harassment
- re-crediting any leave taken as a result of the harassment.
Outcomes will depend on factors such as:
- the severity or frequency of the harassment
- the wishes of the person who was harassed
- whether the harasser could have been expected to know that such behaviour was a breach of policy
- the level of contrition
- whether there have been any prior incidents or warnings.
If there is insufficient proof to decide whether or not the harassment occurred employers should nevertheless:
- remind those involved of expected standards of conduct
- conduct further training and awareness raising sessions for staff
- monitor the situation carefully.
Employers must ensure that the outcome of a complaint, substantiated or not, does not disadvantage the person who made the complaint in any way, in the absence of strong evidence that the complaint was vexatious or malicious.
If a complainant does not want to proceed with a formal or informal complaint, this does not mean that management should take no action. As with unsubstantiated complaints, it is a good time to consider the internal processes for preventing and responding to sexual harassment, provide training and remind employees of their general obligations not to sexually harass others. In addition, management should follow up with the person who reported their concerns a few months later, to check whether their concerns remain, and to monitor the relationships involved.
7.2 Developing sexual harassment complaint procedures
Employers may develop complaints procedures to suit their particular workplace. In the Commission’s experience, the most effective complaint procedures for large organisations offer a range of options for dealing with sexual harassment. For example, a person can complain to their own supervisor, another manager or a designated complaints officer. The individual is then able to select the option which best suits the particular circumstances of their case.
Smaller businesses have less capacity to offer a range of options, but as a minimum should ensure that managers have the knowledge and training to deal with sexual harassment complaints and should inform staff that complaints may be made to the Commission or state and territory anti-discrimination bodies. Depending on their size, small or medium-sized businesses may also consider training an additional staff member to deal with complaints. More information for small businesses is at Section 8.
(a) Reporting to management
Most organisations encourage a person with a complaint to raise it with their immediate supervisor (or another manager if the supervisor is the alleged harasser). In a small business there may only be one manager, but in a larger organisation the complainant can report the situation to another manager, an EEO officer, human resources or industrial relations manager.
Sexual harassment complaints frequently involve sensitive or embarrassing information and in some cases an individual may be reluctant to discuss the details with the management hierarchy. Given this sensitivity and the prevalence of sexual harassment against women, this model is unlikely to be suitable if the management hierarchy is predominantly male. It may also be difficult for a person to make a complaint to management if the alleged harasser is part of the chain of responsibility. The approach also depends on supervisors and managers at all levels possessing the necessary complaints handling skills and knowledge about sexual harassment.
(b) Complaints officers
Larger organisations may overcome some of these difficulties by designating particular employees as sexual harassment complaints officers. This could be an EEO officer, human resources manager or other nominated management representatives. Complaints officers are selected on the basis of their skills, experience and sensitivity. They take an active role in the resolution of complaints and should have relatively senior status in the organisation to ensure that their role is respected and they can operate with the necessary level of authority.
Some large organisations contract out formal complaints procedures to professional consultants. This may be an effective way of dealing with complaints as it promotes the objectivity of the procedures.
(c) Sexual harassment contact officers
Many large organisations have also appointed sexual harassment contact officers. Sexual harassment contact officers provide the first point of contact for a person who complains of sexual harassment. If that person then decides to proceed with a formal complaint, the case is referred to a nominated complaints officer or management representative.
Contact officers are selected from various areas and levels of the organisation to provide information and support to a person who makes a complaint of sexual harassment. Contact officers are not involved in the formal investigation or resolution of a complaint. The role of the contact officer is to listen to the complaint; provide information on sexual harassment and the internal options that are available to deal with sexual harassment complaints; inform the individual of their rights; discuss possible strategies the individual can use to deal directly with the harasser, if this is the individual’s preferred course of action and provide general information on sexual harassment and the organisation’s policy and procedures to any interested member of staff.
