Chapter 7: Complaint procedures - 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 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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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.