The Queensland Civil and Administrative Tribunal (QCAT) has found that an employer’s mishandling of a complaint, and, in particular, a ‘bungled’ workplace investigation, contributed to a worker developing a psychiatric injury.
The ‘bungled’ investigation
A female food and beverage attendant at a Gold Coast resort claimed that she was sexually harassed and discriminated against on the basis of sex and age, after a male chef at the resort commented that she smelt like ‘Old Spice’, sniffed the air around her and asked whether anyone could smell it, referred to her as a ‘cougar’ and made growling noises.
In response to the worker’s allegations, the employer conducted an investigation. However, QCAT found that the process followed by the employer was deficient in a number of respects, including that the employer:
- failed to obtain a full version of events from the worker;
- failed to give the accused colleague an opportunity to respond to the allegations;
- obtained a statutory declaration from the accused colleague, making it almost impossible to test his version of events without exposing him to penalties for making a false statement;
- failed to provide to the investigator a copy of an initial interview between the Human Resources Manager and the accused colleague;
- failed to inform the worker that an investigator had been appointed;
- failed to ensure the worker was interviewed by the investigator;
- failed to call key witnesses to give evidence during the investigation; and
- failed to give the worker the opportunity to respond to the employer’s findings before being told the result of the investigation.
Following its investigation, the employer concluded that the worker’s allegations were unfounded.
QCAT found that the accused colleague sexually harassed and discriminated against the worker on the basis of sex and age, and the employer was vicariously liable for the sexual harassment and discrimination. The employer was ordered to pay to the worker $35,490 in compensation for loss and damage, and the accused colleague was ordered to pay her $4,500 in compensation.
Member Gordon described the employer’s response to the worker’s sexual harassment complaint as ‘inept and unprofessional’ and a ‘bungled investigation’. He found it ‘very surprising’ that the employer failed to corroborate the worker’s allegations, which ‘without a doubt… did take place’.
Member Gordon also found that the sexual harassment, discrimination and the employer’s mismanagement of the complaint contributed to and caused the worker to suffer from an adjustment disorder and depression, leaving her unable to work at the resort.
Lessons for employers
This decision highlights the importance of having sound investigation processes and procedures in place that enable employers to take immediate and appropriate action in response to a complaint.
Employers should take care when conducting workplace investigations and keep in mind:
- the importance of obtaining the complainant’s allegations in full before interviewing the alleged perpetrator;
- the imprudence of using a statutory declaration to set out an investigation participant’s evidence, because of the subsequent difficulties in testing the version of events set out in the statutory declaration;
- the importance of maintaining confidentiality in relation to the investigation, such that all investigation participants are aware from the outset that there are consequences for discussing the allegations or investigation with third parties;
- the need to afford procedural fairness to investigation participants, including by providing the alleged perpetrator with an opportunity to respond to the complaint in full, and giving the complainant an opportunity to respond to the employer’s investigation findings;
- the importance of gathering available evidence and interviewing key witnesses in the course of the investigation; and
- the need for regular and ongoing training of employees about appropriate workplace behaviour. It is not enough to simply have a policy in place.
Employers should consider providing human resources staff and managers with training on how to sensitively and appropriately conduct workplace investigations. Gadens offers training on Investigating Employee Issues, which is designed to assist organisations to navigate the complex issues involved in conducting workplace investigations.