From and article by Australian Business Lawyers & Advisors:
Employer Investigations: The Importance of Getting Them Right
In a recent case, McCauley v Club Resort Holdings Pty Ltd (No 2)  QCAT 243, the Company has been found vicariously liable for the sexual harassment of an employee due to its mishandling of the investigation into the incident. This case demonstrates how important it is for a Company to respond to a complaint of sexual harassment and age discrimination in a measured and appropriate way.
The Applicant in the case made a complaint against a male co-worker who she claimed had sexually harassed her and discriminated against her based on her sex and age. The Applicant claimed that the male co-worker invaded her personal space and referred to her as a ‘cougar’, making growling noises around her ear and neck. The Applicant expressly stated to the co-worker that his conduct was unwelcome but it did not result in him ceasing these comments. The Applicant raised the complaints to her HR Manager. It was found that the HR Manager inadequately investigated the conduct by failing to do the following:
- the Applicant was never formally interviewed by the investigator;
- the Applicant did not have a chance to respond to any information provided by other parties;
- the Company neglected to provide the accused employee with a copy of the interview;
- employees’ who witnessed parts of the allegations were never called to give evidence throughout the investigation; and
- the Company did not provide training on its policies
The above procedural flaws resulted in the Tribunal finding the Company vicariously liable. The Company was ordered to pay the Applicant an amount of $35,490 in compensation for loss and damage.
What does this mean for your business?
The importance of properly executed investigations into complaints cannot be overstated. Investigations need to be thorough, well documented, unbiased and afford all of the parties involved procedural fairness:
Lessons to keep in mind during investigations:
- It is not enough for a Company to merely have a discrimination and harassment policy in place. Your business must also ensure all employees are made aware of, and understand, the policy, for instance by placing a copy on the intranet, in the lunch room and by conducting regular training about the policy.
- The investigation must be neutral and fact-finding. Both parties are to be interviewed with a chance to recall their version of events. The parties should be provided with copies of the interview.
- The complainant must be able to respond to any responses provided by the other party.
- All material witnesses should be interviewed in order to substantiate or not substantiate any claims.
- All parties involved in the investigation, including any witnesses, must not be subject to victimisation or treated adversely because they either made a complaint or are assisting the Company with the investigation.
Learn about Barringtons Investigation Services for Employers here.
Blayne Webb, Director, Barringtons