Investigation ‘bungled’ in sexual harassment case

- Thursday, August 01, 2013

 

By ALISON PAGE, Legal Counsel -

Earlier this year, the Queensland Civil and Administrative Tribunal determined a sexual harassment case in which the Tribunal member described the employer’s initial investigation as ‘bungled’.*

The Tribunal accepted that the HR department was hard pressed, understaffed and overworked. However, the cautionary tale from this case is that this will be no excuse for failing to conduct proper workplace investigations.

This article considers the employer’s mistakes with its investigation to help you avoid having your workplace dirty laundry aired publicly before courts and tribunals and attracting negative publicity.

Background
The complainant had worked for a number of years running the buffet at a resort in Queensland. The respondent was a chef at the resort.

In early March 2010 the resort was preparing to host a golf tournament. It was a particularly busy time for the buffet and the kitchen.

The inappropriate conduct
The Tribunal found that the respondent sexually harassed the complainant over a period of three days during various incidents including:

  • Sniffing the air in the vicinity of the complainant
  • Commenting that she smelt like “Old Spice”
  • Commenting that he recognized the scent of “Old Spice” as his grandfather gave him some
  • Asking if anyone else could smell “Old Spice”
  • Referring to the complainant as a cougar and making growling noises
  • Leaning close to the complainant when sniffing the air and growling in her ear and around her neck
  • Asking her for one last growl before she left

The Tribunal found that the complainant did not encourage this behaviour. At first she put up with it. She ignored the respondent and tried to get on with her work. She believed she demonstrated her discomfort with the respondent’s remarks. However, the respondent was ‘insensitive to her reaction’. Eventually, the complainant berated and admonished the respondent in front of other work colleagues. She told him that what he was doing was unnatural and disgusting. However, the respondent continued to harass her. Finally, the complainant told the respondent that he was an arsehole and that he should “f-off”.

The Tribunal also found that the respondent’s conduct described above amounted to:

  • sex discrimination because the respondent would not have treated a man the same way;
  • age discrimination because the respondent would not have treated a younger women the same way.

The facts in this matter constituted a clear case on inappropriate workplace behaviour. These complaints should have been dealt with internally without the need for the complainant to seek legal redress.

So what went wrong? And why did this matter end up before the Tribunal?

The investigation
Regrettably, the employer’s inadequate handling of its own investigation led the complainant to the Tribunal and also caused her to add several counts of victimisation to her claim (although ultimately the victimisation claims were not found).

The complainant initially raised her complaint with her supervisor and then the general manager who in turn, asked the HR manager to investigate the matter. Rather than interview the complainant herself, the HR manager gave the supervisor a statutory declaration form for the complainant to complete. When the supervisor handed this to the complainant, she said words to the effect that the HR Manager wanted to know ‘what she expected to achieve by all of this’.

The complainant and the HR manager met to discuss the matter and how it should proceed. The complainant became very upset when the HR manager denied having heard or witnessed the complainant admonishing the respondent, even though she was present at the time. The complainant accused the HR Manager of covering up for the respondent.

About three days later, the HR manager handed the investigation to head office’s Employee Relations and Remuneration manager who on completing the investigation found that the complaints were not substantiated.

In view of the Tribunal’s decision, the investigation findings are surprising. Indeed, WorkCover was also able to conclude ‘without a doubt’ that the events complained of did occur and caused the complainant injury.

So how could the investigation findings be so wrong?

The investigation was flawed in several areas:

  1. The HR manager did not interview the complainant before asking the respondent to prepare a statutory declaration. Rather, she relied on the barest information about the alleged incidents given to her second hand via the resort’s general manager;
  2. The HR manager believed it was not her role to prompt the respondent with full details of the complaint. The complainant’s complete allegations were never fully put to the respondent for his comments. His statutory declaration only covered what he thought was important. 
  3. It appears that on handing over the matter to head office, the HR manager did not hand over all relevant materials, most importantly her interview notes with the respondent.
  4. Not all witnesses who may have overheard interactions between the respondent and the complainant were interviewed and those that were, were not specifically asked whether the matters complained about had happened.

Following a few basic investigation rules and processes would have avoided these errors (particularly rules of procedural fairness).

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

WISE Resources

We can learn much from a recent court case

Jill McMahon - Wednesday, May 01, 2013

Court cases can provide valuable insights into the way people behave at work – and lessons for everyone on how to prevent workplace disputes degenerating into bullying and discrimination.

More specifically, directors of organisations should be aware of the risks of vicarious liability; when people they employ to manage others break the law.

A recent case, Burns vs Media Options Group, is instructive; the Federal Court ordered the company to pay a former employee more than $100,000 in damages and interest for breaching both the Disability Discrimination Act and the Sex Discrimination Act.

The dispute started when an employee, a printer, had to start caring for his partner after she had contracted a rare form of terminal cancer. He took her to medical appointments and was the only person available to help her cope with her illness.

The business manager and his wife, who was also an employee, disapproved of this because it affected the business’ operation.

The manager told the employee to “get rid of” his partner, pressured him not to leave work until he had finished the tasks allocated to him, berated him for being late for work and being unavailable to work overtime, as well as making derogatory comments about his partner.
In addition, the manager’s wife told the employee he was “stupid”, that she was “sick of his problems”, and he had cost them money.

Ultimately, they dismissed him in November 2005 – in the presence of two police officers - for reasons that the court later found to have been fabricated to justify the dismissal.
Judge Nicholls awarded the employee $10,000 in aggravated damages because the manager and his wife – who both later became directors of the company - had acted “high-handedly, maliciously, insultingly or oppressively in committing the act of discrimination.”

He rejected counter-complaints by the company that the employee had made racial comments, sexually harassed staff, was violent and drank at work, noting that the company had not pursued such allegations in separate proceedings.

Section 15(2) of the Disability Discrimination Act makes it unlawful for an employer to discriminate against an employee because of the disability of an employee's associate. This can include a spouse or someone living with them on a "genuine domestic basis".

In addition, an employer will have breached the Sex Discrimination Act if they discriminate against an employee on the grounds of family responsibilities or if the employer treated the employee less favourably than an employee without such responsibilities.

While plans to consolidate anti-discrimination legislation have been delayed, the government has introduced amendments to the Sex Discrimination Act to include discrimination against sexual orientation, gender identity and intersex status.

Wise Workplace helps mediate workplace disputes as well as conducting investigations into allegations of misconduct.