Instead, it seeks to provide clear guidance for HR practitioners (or equivalent) to consider when developing their own policies and procedures in relation to claims of sexual harassment. Any policy and procedure developed must be consistent with the employer obligations under the applicable enterprise agreement.
HR practitioners can also refer to the Victorian Equal Opportunity and Human Rights Commission's step-by-step guide to responding to complaints.
See section 7.2 Key Considerations for more detail.
The rules of natural justice ensure that investigations and related decisions are fair and reasonable.
Your industrial agreement or misconduct policy is likely to have an explanation of relevant principles of natural justice which apply to your organisation.
Natural justice rules will help prevent employees being treated unfairly or unreasonably. They will also mitigate the risk of matters escalating.
When considering an allegation, it is important that an organisation:
When managing a report, organisations should consider:
Note: Should any of the above information be provided via face-to-face meeting, it is recommended that it be reiterated in writing via email.
Organisations should consider all complaints (including those which may initially appear to have no merit). This gives appropriate consideration to the sensitive nature of the subject area and affords respect to those involved.
Failure to treat all complaints seriously may exacerbate the problem and the liability.
Section 4 Sexual harassment in the workplace provides detail on the various forms of sexual harassment. Relevant legislation and industrial instruments should also provide guidance.
When considering an allegation, it is important that an organisation:
When managing a report, organisations should consider:
Should any of the above information be provided via face-to-face meeting, it is recommended that it be reiterated in writing via email.
Should sufficient evidence be gathered to prompt a formal investigation, the relevant policy and procedure must be followed. Generally speaking, it is recommended that during the investigation, separate face-to-face interviews be conducted with the person who has made a report, respondent and any witnesses, to gather pertinent information.
In line with an organisation’s policy and procedures, the following steps should be considered, noting that each case should be considered on its merits and some variation may be appropriate. It is also important to recognise that the provisions within the relevant industrial instrument should be followed.
In the first instance, contact all parties to set up times and meeting locations. In doing so:
Gather pertinent information and ensure the you store it securely. Ask all parties to provide any:
A person who has made a report is likely to feel vulnerable when making a report of sexual harassment. Organisations should ensure that a person who has made a report is not required to have contact with a respondent while a matter is being considered, if this is likely to create a risk to health and safety.
Determine, in accordance with the applicable enterprise agreement and misconduct policy, whether the following changes need to be implemented while considering the allegation:
Ensure that these changes do not result in any detriment to the person who has made a report (as this may amount to victimisation, which is unlawful).