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Sexual harassment investigation held inept and unprofessional

Investigating allegations of misconduct requires an employer to have a clear understanding of the elements of a sound workplace investigation.

Where an employer fails on multiple levels to conduct even the most basic tenets of an HR investigation, it is safe to say they will be left publically humiliated and out of pocket should the matter go to court.

This recent Qld Civil and Administrative Tribunal (QCAT) decision[1] found that a prominent Gold Coast resort was vicariously liable for the sexual harassment of an employee.

The employer’s serious mishandling of the original complaint, coupled with a failure to take reasonable steps to avoid sexual harassment in the workplace, left it with a $35,000 debt and a very public rebuke from the Tribunal.

The Complaint

The employee had been working at the resort since 2006.

Over three consecutive days in 2010 during the Australian Ladies Masters Golf Tournament, she was subject to sexualised comments about her smell and her age, including references to being a “cougar”, as well as repeated invasions of her personal space by a chef co-worker.

Despite her attempts to ignore the behaviour, by the third day the frustrated employee confronted her co-worker and told him to f*** off.

He seemingly apologised, however later that day made another offensive remark to the employee.

A number of the incidents were said to have been witnessed by other employees.

Three days after this final incident, the employee approached her supervisor and the general manager of the resort to discuss her complaint.

The matter was then referred to the local HR manager who subsequently handed the investigation over to an interstate HR superior.

The second investigator concluded that the claim was not substantiated and that the comments and behaviour had been light hearted and not derogatory.

Following this outcome, the complainant was subsequently disciplined for discussing her complaint with other co-workers and failing to provide adequate notice for sick leave.

This was coupled with the onset of psychological injury such as depression and anxiety.

The Tribunal’s Decision

QCAT was quick to point out the multiple failures by the employer’s HR team. Bungled from the outset, the investigation demonstrated that a lack of understanding or thought was applied to the whole of the investigation process. Further, limited human resources advice and expertise left the employer open to liability.

Three serious errors were found to have occurred throughout the investigation:

1. The first investigator failed to provide all documentation to the second investigator, consequently an apparent admission by the alleged wrongdoer was missing from the second investigator’s documents;

2. The allegations were never put in full to the alleged wrongdoer; and

3. Up to three nominated witnesses were not approached to corroborate the employee’s complaint.

Other fundamental failures observed included a failure to obtain a full statement from the complainant, a demonstrated misunderstanding of the role of the investigator, an incomplete investigation report, making a finding that was at odds with the weight of the evidence and failing to exercise appropriate tact when informing the complainant of the unsuccessful outcome.

The combined result of these failures, as well as the employer’s failure to prevent the behaviour from occurring in the first place, all lead QCAT to find that the employer vicariously liable for the sexual harassment which subsequently exacerbated the psychological injury suffered by the employee.

Without a satisfactory explanation for its serious lack of judgment, the employer was without a defence to rely on and the employee was awarded $35,490 damages.

Lessons for Employers

Once placed under scrutiny, the flaws in employer’s HR investigation were obvious.

Being ordered to pay $35,000 is an expensive lesson when it would have been much more cost effective to conduct a proper investigation in the first place.

Taking a proper complaint, interviewing relevant witnesses and finally, putting the allegations to the alleged wrongdoer are the most fundamental of steps in a workplace investigation.

As this case demonstrates, employer excuses such as a lack of HR investigation expertise or having an overworked HR department will be given short shrift by the discrimination tribunals such as QCAT.

Do you know how to investigate sexual harassment?

Our Sexual Harassment Investigation Kit is an essential “how to” companion, walking you through the process of investigating an incident – from receiving a report of sexual harassment, interviewing witnesses and the alleged wrongdoer, to confidently making a decision at the conclusion of your investigation.

Find out more by browsing here.

[1] McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243 (13 May 2013)

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