The Risk of Ignoring Reports of Sexual Abuse

Harriet Witchell - Wednesday, May 31, 2017

The matter of  Matthew v Winslow Constructions Pty Ltd brings to light the importance of duty of care in a sexual harassment matter. The Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, 

This case bares similarities to Trolan v WD Gelle Insurance and Finance Brokers notable for a number of interlinked reasons. Damage and loss caused by the sexual harassment and bullying behaviour in question led to the sizable sum of $733,723 in compensation being awarded to the plaintiff in the NSW District Court earlier this month. Triggered by a verbal complaint made by the plaintiff to a director of the company, the case was characterised by significant failures to act on the part of the employer. 

Long gone are the days when a written complaint of such behaviour is needed. The Trolan and Matthews matters both demonstrate that where such extreme behaviour is occurring in the workplace, employees don’t need to put concerns to the employer in written form in order to ‘inform’ the employer of the conduct. This thinking certainly might give pause for thought for both employers and workplace investigators – off the record chats about disturbing sexual harassment and/or bullying might well be all the notification that is required. 

Courage TO TELL 

In August 2008, Ms Matthews commenced working as a labourer with Winslow Contractors. Between August 2008 and early July 2010, Ms Matthews was subjected to a relentless assortment of unwanted and lewd sexual advances from a number of site workers, including by her foreman. The behaviour included several threats of physical and sexual assault, intimidation, and bullying. On occasions when Ms Matthews verbally complained to management, nothing appeared to be done about her complaints. In September 2009, Ms Matthews was moved to a different site crew and the behaviour stopped. However, in late June 2010 Ms Matthews was moved back to the original site and the behaviours resumed, including the threat of rape. Ms Matthews reported the matters over the telephone, on 1 July 2010, to whom she believed was the person in charge of HR. Instead of a change in the behaviours occurring, Ms Matthews was further harassed and asked to 'come round, we will have a drink and talk about it'


Ms Matthews did not return to work after 1 July 2010 and was found by her doctor to have suffered a severe work-related injury, with an incapacity to work again. The essential cause of her diagnosed psychiatric illnesses, including PTSD, was the sexual harassment and bullying that she had endured over a period of time while working at Winslow Contractors. And for part of this time, it was with the full knowledge of her employer. 


Busy employers can be tempted to argue that they can’t be everywhere at once. Although employers are certainly not blind to the potential for unacceptable behaviour, there can however be an built-in assumption that if someone has a problem in the workplace, they should go through formal channels to remedy this. Generally, this would include submitting a written complaint about the alleged conduct. Yet as seen in Matthews the burden rests largely with the employer to detect and resolve any such occurrences. That Ms Matthews had two discussions with a representative of the employer was certainly sufficient grounds to say she provided notice about the offending conduct. 


The consequences of such a failure to respond to sexual harassment and bullying in the workplace can be wide-reaching. Where an injury is suffered, as in Matthews, compensation is evidently payable. This will often take the form of both long-term statutory payments and sizeable common law damages. Failures to follow workplace health and safety procedures can lead to considerable penalties, compliance orders and fines. As well as requiring a substantial workplace investigation to ascertain the details of the alleged behaviour, criminal charges might ensue and/or civil action on grounds of negligence might be brought against the employer to remedy the failure to act; A complex and damaging array of legal and financial consequences indeed. 


It is that failure to act that can cause so much preventable harm. At the moment when the Area Site Manager was told verbally of the conduct, the employer was officially informed and was required to act. Yet this damaging and ultimately costly chain of events was allowed to continue, causing a serious breach of the employer’s duty to protect. Employers are obliged to create a workplace free from harm. And when an employee has the courage and strength to report the offending behaviour, employers must both listen and respond. Written notes, formal documents or approved forms need not be furnished in circumstances such as those faced by Ms Matthews. Her verbal revelation of the disturbing situation in which she found herself sufficed to put the employer on notice. 


The lesson from Matthews? Don’t brush breaches of workplace health and safety such as sexual harassment and bullying under the carpet. A bill of $1.3 Million for a failure to act is much more than loose change. If an employee says that these behaviours are occurring, or if it is observed, don’t wait for written confirmation. Act early with appropriate modes of discussion and/or investigation. In this way, an organisation can stay strong, productive and safe for all.

For information on how WISE Workplace can assist to develop your business's ability to respond to complaints of seriousness misconduct, call 1300 580 685 or visit our website

Bullying: I've Been Talking to HR but Nothing's Happening

Harriet Witchell - Wednesday, May 24, 2017

If you have been the victim of bullying, the HR department in your organisation is generally the first port of call for raising your concerns. 

It can be mentally or emotionally challenging to make a complaint to HR. You may feel exposed or vulnerable because you are concerned that your complaint may not be believed, or that the person about whom you have made a complaint has been told that you have "dobbed" on them.

Depending on the nature of your complaint, or the relationship of the HR personnel with the person or people about whom the complaint has been made, you may have concerns that a workplace investigation will not be conducted thoroughly or your grievance not taken seriously. In any event, your working life can become very uncertain after you have made a complaint to HR. 

Taking a company issue to the HR team can also be a lengthy process, and it may feel like nothing is happening as time ticks by. But it's important to remember that much of the HR investigation will be taking place without you being directly aware of it. 

Here is a brief look at how the process works.


After you have aired your grievance, it's important to try and remain focused and perform your job to the best of your ability. If you feel you are unable to do so, it may be best to take a few days off work on sick leave until you feel stronger, and better able to approach your tasks or face your co-workers.    


There are certain steps which a diligent HR team must follow once a complaint has been brought to their attention. Initially, the complaint must be assessed. 

Next, the HR department will meet with relevant senior staff, who must make a decision as to what the appropriate follow-up actions will be.

Depending on the severity of the alleged behaviour, this may involve HR having a quiet word to the other person or the initiation of formal disciplinary proceedings. The latter is more likely to be the case if the person being complained about is already being performance-managed in relation to prior issues. 

Be aware that it may well take HR a week or even longer to finalise the preliminary investigation process, and make and communicate a decision on the best way forward. 

Privacy obligations to the other employees involved may also mean that you are not entitled to know the full details of what further action will be taken.


At a minimum, HR is required to advise you of: 

  • The fact that it has received your complaint, is taking it seriously and is conducting appropriate levels of investigation. 
  • What Employee Assistance Programs are available. 
  • Who the liaison person for these programs is (if your organisation has one) and how to contact them. 


For serious complaints, your company may engage the services of a third party workplace investigator. 

If this occurs, then you are entitled to: 

  • Be one of the first people interviewed if a detailed investigation is commenced. 
  • Receive a copy of your interview transcript or detailed statement, which you should sign if you agree that it is an accurate record of what you told HR

If your complaint is sufficiently serious, then the respondent facing your allegations will be advised of the exact complaints against them. Although they are also likely to be interviewed, you are not entitled to a copy of their transcript or statement. If you are concerned about any bias, however, be aware that their interview will be recorded.

Once these steps have been finalised, the investigator will draft a report for the review and consideration of the HR department. That report (hopefully completed within a timeframe of less than three weeks) will then be provided to the relevant decision-makers within your organisation for a final determination. 

You will generally be advised that the investigation has been completed, what the findings are, and of any further action steps as they concern you. But in most cases, you will not be specifically advised of any punishment to be meted out to the respondent. 


If your complaint is serious, you may be asked to move or transfer offices or departments. This is not a punishment, but is designed to ensure that your wellbeing is protected, generally by reducing the likelihood of any contact occurring between you and the respondent. 

Try not to respond by being offended or otherwise feeling indignant. All businesses, regardless of their size, have legal obligations to all employees. Your employer cannot simply fire workers who have issues with other employees, and other considerations may mean that the respondent cannot be moved. Bear in mind that your organisation is simply trying to find the best outcome for all concerned. 

If you are nervous about making a complaint or otherwise wish to obtain guidance on how whistleblowers should be dealt with, contact WISE Workplace today for detailed assistance with all aspects of the workplace investigation process.  

Her Word Against His – Detecting Lies in Interviews

Harriet Witchell - Wednesday, May 17, 2017

One of the most challenging aspects for employers attempting to deal with workplace bullying or misconduct is getting to the truth of allegations, especially in circumstances where the apparent victim's version of events contradicts that of the alleged bully.

Most of the time, this disparity can be put down to differences of opinion or misinterpretation of intentions.

For example, the accused bully may have simply felt that they were performance-managing their subordinate, whereas the victim may have felt denigrated and abused. A purported victim may consider themselves to be the target of sexual harassment, while the accused bully may have simply wanted to ask them out for a friendly coffee.

But occasionally, for whatever reason, apparent victims of bullying tell lies in the interview process and make false accusations of bullying. This could be because they dislike the alleged bully, believe the "bully" should be dealt with by management or simply because they have embellished their story and feel that they need to stick with it now that a complaint has been made.

Regardless of the myriad reasons why a victim may lie during an investigative interview, how should this be dealt with by an employer?


Although it is natural to sympathise with a purported victim, and perhaps unconsciously believe their version of events over that put forward by the alleged perpetrator, the most important function of a workplace investigator is to establish the truth surrounding the allegations.

It is therefore imperative that any preferential bias in favour of the apparent victim is removed. If you do not feel that you can adequately perform an interview without such bias, whether because of your relationship with the victim/bully or because you can personally relate to the allegations of bullying, ensure that another person is tasked with conducting the interviews.


Once the claimed victim is participating in the interview process, ensure that you are observing any cues which may indicate that they are not telling the truth. These could include:

  • Overly elaborate stories and excessive irrelevant detail, suggesting an invented story,
  • Gestures and words not matching each other in context, implying that the words have been rehearsed.
  • Whether the story makes sense – is it even plausible that the allegations being made against the bully could be true?
  • A lack of consistency – is the interviewee telling the same story each time or are details changing?

Of course, these can be subjective indicators. It is important to tread carefully when deciding whether a victim is lying about their version of events: making an unfounded and inaccurate accusation can cause even greater distress to an innocent victim.

In this regard it can be helpful to have another person sit in on the interview with you, so that they can provide their own opinion on whether the version of events being provided is accurate, and temper your initial reactions.


Once the alleged victim has provided their version of events and it is apparent that this contradicts that of the claimed bully, it is essential to seek corroborating evidence to either prove or disprove the victim's story.

In addition to speaking with third party witnesses, such as other staff members at work at the time of the alleged incident, this could include evidence such as reviewing CCTV footage, checking personnel files for prior complaints or even performing basic checks such as making sure that both employees involved in the complaint were even working together at the relevant time.

Conducting a workplace investigation is a complex task, often requiring specialist knowledge and experience. WISE Workplace can assist with conducting interviews if you wish to safeguard the investigation process by avoiding any allegations of bias or favouritism, or are otherwise concerned that the interviewee may not give the full version of events. Please feel free to contact us for more information.

Child Sexual Exploitation & Trafficking Conference Insights

Harriet Witchell - Wednesday, May 10, 2017

A wrap-up of the Children, Justice and Communication Conference at Portsmouth University, May 2017.  Last week, I had the privilege of attending the Children, Justice and Communication Conference at Portsmouth in the UK.  The conference is hosted by some of the world’s leading academics and practitioners working in the areas of child sexual exploitation, trafficking, child abuse, incest and more.  

Opened by Professor Ray Bull, the conference featured the work of Professor Becky Milne, Dr Julie Cherryman, Dr Lucy Akehurst and Professor Penny Cooper to name but a few. 

The audience, mostly police officers from the UK, represent those forward-thinking agencies and officers who want to make a change for the good and tackle some of the most challenging crimes. The number of police officers with higher research degrees is particularly impressive, and is having a massive impact on the quality of policing not only in Britain, but around the world.

Tackling challenging issues across the globe

Some of the issues covered on the first day included the conundrum of obtaining evidence from teenagers who have been exploited and trafficked but consider their actions to be consensual and complicit in the activities. How do we empower these individuals to become witnesses rather than to take on the persona of victim? 

Dr Brian Chappel, a senior police intelligence expert, spoke of the use of juveniles as critical intelligence sources necessary to infiltrate youth gangs. Interestingly, his research showed that the 10 informants who participated in his study were themselves free from any police intervention up to a year later. 

Dr Shaleve-Greene addressed the issues for agencies in handling or identifying the 10,000 unaccompanied migrant minors that go missing across Europe every year. This was another statistic to get my head around – this number reflects only those we know about who are missing and vulnerable to traffickers and exploitation. There are also tremendous challenges to local safeguarding children boards, such as the one operating in Kent on the south coast of Britain. 

Dr Sue Gower spoke about the services and educational needs of their staff when they take on responsibility for the children from their own county, a similar number from neighbouring counties, and then double the number to account for the unaccompanied immigrant minors arriving from Europe. 

How intermediaries are working successfully overseas

Professor Penny Cooper hosted a panel of experts who presented on a range of issues connected to the use of intermediaries who support and assist children and vulnerable adults to communicate with police, and courts. 

The NSW Department of Justice is currently trialling the use of intermediaries, so it was great to hear the many ingenious and fantastic ways these experts have of working with children to help them communicate. Convictions have been secured with the use of evidence from children as young as three-years-old. These presentations also addressed the increasingly common needs of children with autism spectrum disorder. 

As practitioners, it’s so important to stick our heads above the partition wall and have a look at the fantastic work going on around the world. 

WISE Workplace offers consulting and investigation services to assist and support workplaces in conducting fair and efficient investigations and developing comprehensive complaints processes.

Contact one of our offices to talk to an advisor about a free consultation.

So You've Been Accused of Bullying - What Now?

Harriet Witchell - Wednesday, May 03, 2017

The issue of workplace bullying is much more openly discussed these days, and most employees are aware that they can make a formal complaint to their employers and have the matter investigated – with appropriate resolution to follow.

But what happens if you are not the victim, but instead have been accused of being the bully?


Being accused of bullying is never pleasant. It can create a number of confusing feelings, including concerns about your job security, a sense of lost control over your workplace and working experience, and frustration or even anger towards your accuser.

This can particularly be the case if you dispute that the alleged behaviour occurred or took place as claimed, and feel that you have been wrongly accused.

In some circumstances, those accused of workplace bullying may even develop feelings of depression or anxiety.

But there are strategies which you can employ to stay focused and keep your emotions under control while the investigation process is underway.

These include:

  • Remembering that the accusation is only an allegation and does not mean that anything has or will be proven against you.

  • Understanding that there is an investigation process which needs to be followed to ensure fairness is afforded to both parties. Your organisation will need to investigate the allegations and talk to staff before they get your side of the story.

  • Avoiding interfering in the investigation, as this will risk a finding of bias and will only extend the process.


As the alleged perpetrator of the workplace bullying, you are entitled to be advised of what the allegations made against you are, although you cannot be provided with a copy of the initial letter of complaint.

This is to ensure that the complainant maintains some privacy and avoids potential further harassment. Once you have been advised of the complaint and the details of the allegation, it is a good idea to make a written record of your version of events.

You have the right to participate in an interview and, if you take up this right, it is important to calmly address the facts and provide a rational, not emotional, response to the allegations.

You are also entitled to request that you have a support person to sit in on interviews and provide you with moral support throughout the investigation process.

The key thing to remember is that you have the right to an unbiased investigation. If you genuinely believe that the investigator or somebody with the power to make the final determination is prejudiced against you or otherwise has a conflict of interest, you should set out your concerns, preferably in writing, and request that another person becomes involved in the process.

If you continue to feel that the process is tainted by bias, you can contact the Fair Work Commission's Help Line or obtain independent legal or consulting advice to ensure that your rights are protected.

By the same token, you should avoid discussing the complaint at all with co-workers or decision-makers, and certainly should not engage in discussions with the complainant under any circumstances. Any attempt to do so may be perceived as an attempt to influence witnesses or otherwise interfere with the investigation.


It's important to be aware that the workplace investigation process can be lengthy, and more serious allegations of bullying might take six or more weeks to investigate. Factors such as the victim (or you) going on stress leave or annual leave can also affect the timeframe of the investigation.

Although it is certainly justifiable to feel stressed, and you should seek support if you feel unwell, going on medical leave in response to the complaint will only prolong the investigation. Your health is likely to be better served in the long-term by assisting in the process, enabling a quicker resolution.

Being accused of workplace bullying and the subsequent investigation process can be an upsetting experience. If you are the subject of a workplace bullying complaint, we can provide you with advice on the investigation process, and help you to make a full and articulate response to the allegations against you. Feel free to contact us here.