When an employee lodges a bullying or sexual harassment complaint against a colleague, employers are faced with complex intersecting obligations and a need to act.
A workplace investigation will often be commissioned. The "accused" is usually entitled to a chance to respond. Employers will try to not prejudge the complaint. The employer must also ensure, so far as is reasonably practicable, a safe workplace for all while the investigation takes place. Work must continue. A risk assessment is undertaken and colleagues may be separated.
A recent decision of the NSW Civil and Administrative Tribunal in James v Department of Justice, Corrective Services NSW  NSWCATAD 238 considered the difficult process of managing such an investigation and how steps, apparently taken in the interest of safety and investigation integrity, were nevertheless found to be victimisation under the Anti-Discrimination Act 1977 (NSW).
Ms Rita James made a complaint of sexual harassment against her Director and employer, Corrective Services, to the Anti-Discrimination Board. Subsequent to this complaint Ms James then lodged a much larger complaint, a part of which concerned an allegation that 'during the night [her Director] put his hand on my backside and squeezed'.
Ms James' treating doctor certified Ms James unfit for work unless Corrective Services could ensure that she did not have any contact with the Director. Corrective Services said that this could not be guaranteed. It was thus determined that Ms James would not return to her original workplace until the investigation was finalised. Ms James was found an alternative position at another location, 35 kilometres away.
Corrective Services investigated Ms James' allegations of indecent assault and the allegations were found to be unsubstantiated.
After the investigation, Ms James was not returned to her original workplace because of safety concerns, including to not cause her distress should she have contact with her Director. Ms James was not returned to her original workplace even after her Director had himself been relocated to another area.
Ms James alleged that her treatment during and after the investigation, in being relocated to a different workplace and not returned, was detrimental conduct amounting to victimisation.
A natural tension arises. Complainants should not be treated differently for speaking up. Similarly, the accused should be presumed innocent until the facts are known. Most employers when confronted with a serious complaint would undertake a risk assessment and put in place interim measures to ensure immediate safety and workplace functionality. One such measure could include relocating the complainant, particularly in response to medical restrictions issued by their treating doctor.
There may be many reasons for implementing such interim measures including:
- to ensure safety (including mental wellbeing) whilst the investigation determines the veracity of the allegations;
- to preserve the integrity of the investigation process; and
- to balance business needs, ensure work continues and services are provided.
These were some of the reasons offered by Corrective Services in deciding to relocate Ms James. But was a reason for also relocating Ms James the fact she made a complaint?
To be successful in a victimisation complaint, a person must be able to prove that they have been subjected to some detriment because they made a complaint or claim about conduct that would offend the Act: see s 50 of the Act.
Under the Act it is not unlawful to do something "if it was necessary" to do it because of a legal obligation under other legislation: see s 54 of the Act. In Ms James' case, Corrective Services said it was obliged to relocate Ms James because of its workplace safety obligations.
Relocating Ms James to a workplace 35 kilometres away from her normal place of work was a detriment; it required her to travel an extra two hours a day. The sole issue in the case therefore was why did Corrective Services relocate Ms James during the investigation and not return her after the investigation?
Ms James made a complaint. But for the complaint, she would not have been relocated. However, did the making of the complaint motivate the actions of Corrective Services or was it other concerns, such as ensuring workplace safety, that were the reasons for relocating Ms James?
Corrective Services explained its decision as follows:
[It was] further determined that the complainant could not be returned to the Complex due to the ongoing investigation into an alleged assault by the Director against the complainant
Therefore, in accordance with the Respondent's WH and S obligations, relocation is also necessary to protect the integrity of the investigation process.
The Tribunal understood that message to mean that Ms James was not returned to her workplace because of her complaint.
"Complainants should not be treated differently for speaking up. Similarly, the accused should be presumed innocent until the facts are known."
The Tribunal rejected the defence that Corrective Services' actions were reasonable. Such a defence is not available under the Act, the Tribunal said. It was also not clear that relocation was necessary to ensure compliance with workplace safety obligations.
The Tribunal was not impressed with the need to ensure safety as a justification for the relocation. Apparently, Corrective Services had allowed the Director and Ms James to be in the same room during an interview process for a new role; undermining the safety concern. By inference, the Tribunal deduced there was no lawful explanation for not returning Ms James to her role, especially after the Director had moved.
The Tribunal found that Ms James was victimised and awarded her $20,000 as general damages.
What is an employer to do in these circumstances? It is a difficult balancing act. There is a need to balance competing obligations, ensure a fair investigation process, provide a safe workplace and make sure the complainant is not victimised.
A lesson from this case is that automatically moving the complainant may not be the best response. Any measures taken should follow a proper risk assessment and consultation with those affected. Alternatives to relocating a complainant could be:
- managing working hours, access and exit from theworkplace etc. to minimise interaction during theinvestigation;
- moving the employees to different areas or different levels in the same workplace;
- have supervised interactions and or appointing another employee to act as an intermediary between the parties;
- if there is a need for the parties to communicate about work matters having all communication through the intermediary; or
- following the finalisation of the investigation process, consider engaging in a facilitated workplace conflict resolution process or mediation.
Ultimately, the aim is to ensure a professional, safe and workable relationship. The making of a complaint and the outcome will inevitably cause tension and make the relationship difficult. But the complaint also presents an opportunity to move forward. By focussing on a measured and tailored response to a complaint and any perceived risks, employers minimise the prospect of a victimisation complaint.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.