Employer’s Investigations into sexual harassment found to be overly formalistic
The recent Queensland Industrial Relations Commission (“the Commission”) decision in East Coast Pipeline Pty Ltd v Workers’ Compensation Regulator highlights the care that needs to be taken by employers, when undertaking investigations into allegations of workplace sexual harassment. The Commission’s decision is a warning for employers, to ensure they are not overly formalistic when conducting investigations into alleged sexual harassment.
- The employee won a claim for workers compensation against his employer, after he suffered psychological injury as a result of his general managers actions in investigating allegations of sexual harassment, which had been made against him by another employee
- Without consulting HR, the General Manager asked the employee to attend a meeting to discuss the allegations. After the meeting, the employee was told by email that he was suspended on full pay until the employer’s investigation was concluded. He never returned to work.
- The employer appealed WorkCover’s acceptance of the workers’ compensation claim, arguing that even if he did suffer a psychological injury, it was the consequence of reasonable management action undertaken in a reasonable manner.
Formal Investigation Unwarranted
The Commission found that the employer’s investigations were “unnecessarily forensic” and “elaborate”. This was because despite the complainant’s reluctance, the employer had requested that she make formal allegations, in addition to conducting six formal interviews and insisting that several employees sign confidentiality agreements.
Ultimately, the employer’s investigation failed to comply with workplace law because:
- The employer “lacked sensitivity” in confronting the employee with the allegations over the phone, particularly when the employer was aware of the employee’s mental health issues. The Commission recommended that this should have been done in person in order to gauge the employees reaction and form a view as to any “adverse health impacts”
- The employer failed to test the legitimacy of the allegations before confronting the employee.
Importance of a Proportionate Response:
The Commission emphasised the importance of a proportionate response under workplace law. In these circumstances, the employer should have followed their own sexual harassment policy, which emphasised resolution of issues without deciding fault.
In rejecting the employers appeal, the Commission determined that the complaint did not have the necessary complexity in order to warrant such formal processes, and believed that the employee’s psychological injury “arose out of, or in the course of, management action that was unreasonable, or from management action that was taken, or both.”
Tips for Employers
- introduce or update any sexual harassment policies to ensure that they are in line with workplace law
- ensure you engage your HR department before discussing any sexual harassment allegations with the accused employee
- seek advice from an employment lawyer if you are unsure of how to manage allegations of workplace sexual harassment
To view this workplace law decision click here.(link is external)
If you would like more information about this article or if you would like any assistance in other employment law matters including contracts of employment or immigration law, please feel free to speak with or email one of our specialist employment lawyers on (02) 9635 7966 or email@example.com
DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant workplace law.
  QIRC 101 (30 September 2016)