Good employers know they should never ignore a sexual harassment complaint.
But, on the other side of the coin, can employers actually be too proactive in dealing with a complaint?
Shoalhaven City Council in New South Wales discovered that reacting too hastily to a complaint can have negative consequences, when it told a male worker at the outset that a “serious” complaint of “sexual harassment” had been made against him.
The worker then successfully claimed for workers’ compensation for a psychiatric injury he suffered because of the “distress” of the upfront allegation.
Shoalhaven City Council appealed the decision, but was unsuccessful.
Female worker was told men ‘drool over her all the time’
The employer submitted to the New South Wales Workers Compensation Commission (NSWWCC) that a female worker made a complaint to her supervisor after the male worker told her in a business telephone call “how pretty she was, that she could do better than her boyfriend, and that his workmates … talk about her all the time and drool over her all the time and think she’s gorgeous”.
The female worker said he went on to say “I am not blowing smoke up your arse but I am having one now and if you come on over, I will blow smoke up it”.
The conversation ended when the male worker asked if he was making the female worker feel uncomfortable, which she confirmed was the case. The male worker then said “I hope I won’t be up for a sexual harassment charge”.
The female worker reported the conversation to her supervisor, who discussed the matter with the line manager.
The line manager then organised a meeting with the male worker and his supervisor.
At the meeting, the male worker became “visibly upset”, commenting that he did tell the female worker that she could do better than her boyfriend, but did not “say that that better person should be me”.
Hasty meeting ‘shattered’ male worker
The male worker was not offered the assistance of a support person in the first meeting, even though one could have been made available through the council’s Employee Assistance Program (EAP).
The line manager didn’t think it was necessary at the time, as it was only an initial discussion to inform the worker that a complaint had been made against him and that it was being followed up. The line manager didn’t see this as a “dispute meeting” which would require two days’ notice and the offer of a support person.
In a meeting with the human resources department about three weeks later, the male worker’s supervisor noted that the worker “was shattered” by the meeting.
When the supervisor was asked to explain why the worker had not been offered an assistance person beforehand, he said “I can’t recall it being mentioned. I know I did not mention it to him and should have”.
The male worker subsequently developed a psychological injury which he claimed workers’ compensation for.
While the employer accepted that the worker had developed a psychological injury, it disputed liability for the claim, as it said it had occurred as the result of reasonable disciplinary action.
The worker contested this, and in an NSWWCC decision in March, NSWWCC Arbitrator William Dalley ordered the employer to pay for the worker’s medical treatment.
Arbitrator Dalley concluded that the employer had not been fair in:
- calling the worker to a meeting of such a serious nature without a support person;
- categorising the complaint as “sexual harassment” and a “serious matter” to the worker, when there was no requirement to do other than inform him that a complaint had been made and inform him of the words complained of; and
- failing to inform the worker about assistance available through the employer’s EAP, as soon as the worker displayed distress.
Employer’s appeal was not persuasive
In appealing the original NSWWCC decision, the employer maintained that it had taken reasonable disciplinary action, telling NSWWCC Acting Deputy President Larry King that Arbitrator Dalley had:
- failed to consider the reasonableness of its actions as an employer;
- failed to consider its rights and responsibilities as an employer to provide a safe work place; and
- used hindsight reasoning in his decision.
Further, the employer stressed that the worker already knew about the EAP, but it was not discussed in the first meeting, as the meeting only went on for less than five minutes. The employer said it also reminded the worker of the EAP at the next available opportunity.
However, Acting Deputy President King found that the length of the meeting did not “rationally seem to call into question the Arbitrator’s findings”.
“It is difficult to gainsay the proposition that [the worker] could have been offered support before the meeting began and that immediately his distress was seen something could have been said before it was allowed to come to a close or before he left,” Acting Deputy President King said.
“In short I would not regard [the employer’s] grounds of appeal and written submissions in support thereof as seriously calling into question the Arbitrator’s reasons.
“In my opinion the appeal must fail. The Arbitrator’s decision was a factual one, in that he took a view of what had undoubtedly happened when called upon to determine whether it was reasonable or not. I can see no error in his decision.
“I feel no ‘actual persuasion’ that he was wrong.
“Accordingly the appeal should be dismissed and the determination of the Arbitrator confirmed.”