Chapter 10: Other duties of employers - Effectively preventing and responding to sexual harassment: A Code of Practice for Employers (2008)

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Effectively preventing and responding to sexual harassment: A Code of
Practice for Employers

Chapter 10: Other duties of employers

Contents

Key points
10.1 Defamation
10.2 Protection of the parties
10.3 Protection of designated personnel
10.4 Termination of employment
10.5 Occupational health and safety

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10.1 Defamation

Defamation is an issue that often arises in sexual harassment complaints
because of the potential damage that can be inflicted to a person’s
character, reputation and standing. You may find that an individual is reluctant
to pursue a complaint because they have unfounded fears of being sued.
Alternatively, an alleged harasser who claims to have been falsely or
vexatiously accused of sexual harassment may indicate that they intend to
commence an action for defamation. However, the application of defamation law in
the context of sexual harassment allegations is limited. However, the
application of defamation law in the context of sexual harassment allegations is
limited.

10.2 Protection of
the parties

Defamation is the publication or making of a statement about someone, which
lowers their reputation with people or leads other people to avoid or shun them.
Everyone involved in communicating a defamatory statement is liable, including
those who repeat its publication. For a statement to be defamatory it may either
be intentional or negligent.

Examples would include spreading a story about an alleged harasser, either
orally or by e-mail, around the workplace, or by carelessly leaving a file
containing such information where inappropriate people could read it. However,
it is not defamatory for a person with a complaint of sexual harassment to
confront the alleged harasser directly and in private, or to send them a private
letter outlining the offensive behaviour, as this does not damage their
reputation with others.

Nor will it be defamatory for an individual to make a complaint to a person
who has a legitimate and genuine interest in knowing about the incident, such as
a sexual harassment contact officer, a complaints officer or management. As long
as the complaint is made in good faith through the proper channels it is
unlikely to be defamatory.

This protection will be lost if an individual makes a complaint in bad faith
without genuinely believing it to be true is motivated by malice or
indiscriminately broadcasts unfounded allegations.

People making sexual harassment complaints or providing information to the
Commission are protected from civil actions, including defamation, in respect of
doing so under section 111 of the Sex Discrimination Act.

The parties to a complaint should be warned of the legal risks associated
with disclosing the allegations or counter-allegations generally. They should be
advised to maintain confidentiality and to discuss the complaint only with those
who have official responsibility for dealing with it.

10.3 Protection of
designated personnel

Anyone with a recognised genuine interest in the resolution or investigation
of a complaint of sexual harassment (either informal or formal) is protected by
the defence of qualified privilege.

Statements which would ordinarily be defamatory may be made by a person in
the performance of a moral, social or legal duty to another person who has a
corresponding duty to receive that information. As sexual harassment is
unlawful, a person who is responsible for dealing with complaints can discuss
the allegations where it is required for the performance of their duty.

Employers can protect their line managers and other staff likely to receive
complaints of sexual harassment from allegations of defamation by formally
appointing and training them as sexual harassment complaints or contact
officers. In that way, the employer will not only have good processes in place
for dealing with sexual harassment complaints, but the officers will be more
likely to attract the defence of qualified privilege.

Managers, sexual harassment contact officers, investigation officers and
counsellors should maintain confidentiality at all times. Information concerning
the complaint should only be discussed with other authorised personnel involved
in the particular case.

10.4 Termination of
employment

Prior to terminating the employment of an employee in connection with
harassment allegations, it is important to have a good understanding of the
relevant legislation in respect of termination, as well as employers’
obligations in regard to process. At a federal level, termination of employment
is covered by the Workplace Relations Act 1996 (Cth). However, most
states have their own legislation that may also be
applicable.^[41] Both federal and
state legislation make unfair dismissal - the ‘harsh, unjust or
unreasonable’ dismissal of an employee – unlawful. Any dismissal
should also comply with the terms of any relevant award or enterprise
agreement.

This is a complicated area of the law and it is beyond the scope of this
publication to provide a guide to termination and the relevant federal and state
legislation. However, a check-list is provided below of some of the standards of
procedural fairness that all employers should follow when considering
terminating an employee’s employment (as well as following their own
policies on termination).

• If the termination is for a reason other than serious misconduct (see the
  discussion of serious misconduct below), the employee should be warned and
  counselled about the issue in accordance with law and practice.
• An investigation should be conducted by the employer concerning the
  allegations and written notice of the allegations given to the employee.
• The employee should be interviewed before the decision to terminate is made.
  The employee should be given reasonable notice of the interview and it should be
  made clear to them in advance that:
  • termination is under consideration and that the outcome of the
    interview could be termination
  • they should have a witness of their choosing present with them at
    the interview.
• At the interview, the employee should be given full opportunity to:
  • reply to any reasons/accusations put
  • be heard about any matters the employer should be aware of when
    deciding whether to dismiss the employee
  • be heard about whether they should be terminated, if the employer
    finds the allegations against the employee are true.
• The employer should carefully consider all matters raised by the employee at
  the interview, prior to making a decision to dismiss the employee.
• The employer should keep careful notes of each step in the
  process.

If an employer wishes to terminate the services of an
employee, the employer must give the employee notice of their termination, or
payment in lieu of notice, as well as all other applicable payments such as
outstanding wages, pro-rata annual leave and, in some cases, long service
leave.

The legislation recognises there are some instances where it would be
inappropriate for an employer to give notice or pay in lieu of notice upon
termination. This is what is known as ‘summary’ or instant
dismissal, and occurs in the case of serious and wilful misconduct by an
employee. If the termination is for reasons of serious misconduct and the
employer gives no notice, there is a reverse onus of proof in subsequent
proceedings. This means that the employer would have to prove the fairness of
the termination, rather than the employee having to prove that it was unfair as
in other unfair dismissal matters. If there is some doubt in the
employer’s mind that the misconduct was not serious and wilful, the
employer should give consideration to a payment in lieu of notice.

Summarily dismissing an employee is a serious step for an employer to take.
It is still essential for an employer to investigate all issues thoroughly, and
to give the employee a chance to respond to allegations before making the
decision to terminate. If the need arises, an employer can suspend the employee
on full pay until the facts have been established and a decision made. If, after
carefully investigating a situation, an employer decides to summarily dismiss an
employee, there is still a requirement to make all applicable payments such as
outstanding wages, pro-rata annual leave and, in some cases, long service leave
to the employee.

Following these guidelines will not prevent an employee from commencing an
unfair dismissal application in the Australian Industrial Relations Commission
(AIRC), or other relevant state tribunals, but will put an employer in a better
position to defend a claim. Each case is considered by the AIRC or state
tribunal on its individual merits. It is recommended therefore that employers
seek their own independent advice prior to terminating an employee’s
employment.

10.5 Occupational
health and safety

Employers have a common law duty to take reasonable care for the health and
safety of their employees.^[42] This
common law duty is reinforced by occupational health and safety legislation in
all Australian jurisdictions.

An employer can be liable for foreseeable injuries which could have been
prevented by taking the necessary precautions. As there is considerable evidence
documenting the extent and effects of sexual harassment in the workplace, it has
been argued that the duty to take reasonable care imposes a positive obligation
on employers to reduce the risk of it occurring.

A work environment in which an employee is subject to unwanted sexual
advances, unwelcome requests for sexual favours, other unwelcome conduct of a
sexual nature, or forms of sex-based harassment, is not one in which an employer
has taken reasonable care for the health and safety of its employees. A work
environment or a system of work that gives rise to this type of conduct is not a
healthy and safe work environment or system of work. An employer could be
regarded as not having acted reasonably to prevent a foreseeable risk if
practicable precautions are not taken to eliminate or minimize sexual harassment
in the workplace.^[43]

Failure to fulfil the duty of care can amount to a breach of the employment
contract as well as negligence on the part of the employer. This means that an
employee who has been harmed could bring an action against their employer in
contract or tort.

References

^[41] Victoria, Australian
Capital Territory and Northern Territory do not have their own legislation, but
are covered by the Workplace Relations Act 1996 (Cth).
^[42] Note that this is a complex
area of law and it is beyond the scope of this publication to address
occupational health and safety issues in any detail. Employers should seek
independent legal advice on these
issues.
^[43] T MacDermott
‘The Duty to Provide a Harassment-Free Work Environment’(1995) 37(4) Journal of Industrial Relations 495 p.505.