Two recent decisions involving sexual harassment in the workplace provide good examples of the right way, and the wrong way, for a business to handle the issue.
The right way
The Fair Work Commission upheld BHP’s summary dismissal of a male employee for sexually harassing two female employees at an iron ore mine in WA’s Pilbara region.
The first incident involved the man hugging a woman without consent and whispering sexually explicit comments in her ear.
The second incident occurred six months later and involved the man making sexually explicit comments to a different woman and grabbing her breast.
After the second incident, both women reported the conduct to management who correctly followed the necessary procedures:
- Immediately standing down the male employee and removing him from the work site;
- Providing written allegations to the male employee with an opportunity to respond;
- Advising in writing that the allegations had been found to be substantiated and that it was considering terminating his employment;
- Inviting the male employee to respond to the investigation outcomes and attend a meeting to discuss the investigation;
- The employee chose not to attend a meeting but denied that either incident had occurred. BHP proceeded to terminate his employment.
In upholding BHP’s decision to terminate the man’s employment, the Commission preferred the evidence of both women to the blanket denials of the man.
This is a good reminder that in ‘he said/she said’ complaints with no witnesses, it is still possible to make defensible findings of fact following a thorough workplace investigation.
The wrong way
A beauty therapy company in Victoria was ordered to pay a female employee $150,000 in damages for failing to prevent or adequately address the employee’s sexual harassment and assault by a male co-worker.
The harassment included:
- Brushing past her deliberately;
- Making suggestive comments, jokes and sex noises;
- Making comments about her breasts;
- Enquiring about her sex life.
The female employee made two complaints to a director of the business who then spoke to the male employee and received assurances from him it would not happen again. The behaviour then escalated to sexual assault when the man attempted to put his fingers in her mouth and shoved his head between her breasts. Criminal charges were pursued for the sexual assault incident.
The business argued that it should not be liable for the male employee’s conduct as the business gave all employees access to an electronic handbook containing policies on anti-discrimination and sexual harassment. Other than providing access to the policies, however, the business only discussed them in a rudimentary manner in a single staff meeting. Further, the business was unable to provide evidence that its employees had ever accessed the electronic policies, or had read and understood the policies.
It was determined that the business’ response to the employee’s complaints were manifestly inadequate and that the business should have conducted a proper investigation, issued warnings/disciplinary action, and ensured that the male employee read and understood the policies of the workplace.
If you have any questions about the information above, or require assistance in conducting a workplace investigation, please contact the MTA WR team on 8291 2000, or at email@example.com.