When Workplace Relationships Go Wrong

Vince Scopelliti - Wednesday, May 30, 2018

Given how much time employees spend at work every week, it is hardly surprising that romantic relationships develop in the workplace. 

But what happens when a romance is inappropriate, or attraction crosses the line into sexual harassment?

inappropriate vs unlawful

While there is nothing illegal about a workplace relationship between two consenting adults, in some circumstances it can be inappropriate, for example a romance between a manager and a subordinate. 

There is also a significant difference between mutual and enacted sexual attraction, and unlawful conduct such as unwanted sexual advances, sexual harassment or even abuse or assault. Sexual harassment is unlawful under both the Sex Discrimination Act 1984 (Cth) and Equal Opportunity Act 2010 (Vic). Sexual abuse and/or assault is a criminal offence.

the issues and consequences

Workplace relationships can become problematic, particularly in situations where a relationship involves two employees, one of whom oversees the other's performance, management or appraisal. 

Other co-workers may feel aggrieved by a real or perceived bias involving any decisions made by the more senior worker involved in the relationship. Team morale can suffer if one member is seen to be treated more favourably than the rest when it comes to performance appraisals, the allocation of work and promotional opportunities. 

Partly for this reason, employers may be tempted to dismiss employees who have not disclosed the nature of their romantic relationships. The legality of any such dismissal is questionable - however, previous decisions of the Fair Work Commission have suggested that employees may be dismissed in cases where employees are untruthful when they are challenged about the existence of workplace relationships. 

Employees may also make unwanted advances to other employees, as a result of innocently misinterpreting signs of perceived sexual interest. While there's nothing wrong with a co-worker asking a colleague out on a date or making an advance, there is a problem if the 'advancer' fails to accept and move on from any rebuff. 

The potential for negative fallout when a relationship ends is also a key concern for most employers. This is particularly the case if one party wants the relationship to continue while the other party wants to move on - ongoing attention may tip over into sexual harassment. 

According to the Australian Human Rights Commission, sexual harassment is 'any unwanted or unwelcome sexual behaviour, which makes a person feel offended, humiliated or intimidated. Sexual harassment is not interaction, flirtation or friendship which is mutual or consensual'.

From an employer's perspective, if sexual misconduct occurs in the workplace (or at employer-sanctioned events such as Christmas parties or other functions) then the business may well be vicariously liable.

There is certainly potential for litigation or unwanted media attention and brand damage as a consequence of sexual misconduct or an inappropriate relationship.    

what can an employer do to minimise the fallout? 

From a risk mitigation perspective, employers should ensure that they have adequately drafted and communicated workplace policies.

At a minimum, these policies should include: 

  • Clear guidelines on the permissibility of relationships between co-workers and when such relationships should be disclosed; 
  • Procedures for what should happen when such a relationship is disclosed, for example when a change in reporting structure is required;
  • A clause addressing conflict of interest and perceived bias (especially when relationships occur between senior and junior staff);
  • A clause defining sexual misconduct, highlighting the definition of sexual harassment and what kind of behaviour will not be tolerated in the workplace. 
  • Workplace policies that promote awareness of all gender related issues, including sexual harassment. 

It is common for relationships and attractions to develop in the workplace. As an employer, it is important to ensure that these circumstances do not lead to incidents of sexual harassment or perceptions of conflict of interest. 

Employers should ensure that they address all complaints of sexual harassment with care. If you have had complaints regarding sexual harassment, or are concerned about potential bias, WISE provides full and supported investigation services

2017: The Year Sexual Harassment Claimed the Public Spotlight

Vince Scopelliti - Wednesday, January 03, 2018

It seems that as 2017 gathered steam, more and more brave survivors of sexual harassment in the workplace gained the courage to name their alleged harassers. 

From Hollywood bigwigs and actors to Australian TV personalities; it seems that a vast array of perpetrators and inappropriate actions within the entertainment industry have finally come to light. 

There is no doubt that any move to identify and eliminate sexual harassment at work is a good thing. However, what is important as we close the 'year of the Weinstein' is that we don't forget some of the less obvious - but no less damaging - manifestations of sexual harassment in the workplace. 

The reach of Australian legislation protecting workers is impressive. Yet many workers and employers still fail to recognise that sexual harassment is occurring on a regular basis. For example - a workplace might tacitly support that 'touchy feely' manager, or the 'jokey' worker who pushes the line on blue humour. What is certainly not acceptable under law, can in some contexts become normalised. 

Developing broad-ranging understanding of what is and what is not sexual harassment, can be quite challenging. How to combat this lack of knowledge is the next frontier for employers and workers alike.

Key definitions of sexual harassment

The Federal Sex Discrimination Act contains the following definition of sexual harassment: 

28A - Meaning of Sexual Harassment

(1) For the purposes of this Division, a person sexually harasses another person (the person harassed) if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engaged in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 

Importantly, 28A(1)(b) provides for the broader "unwelcome conduct of a sexual nature." 

Both workers and employers alike face some knowledge gaps in terms of the reach of the definition. And what could mistakenly be thought of as 'just mucking around' or 'a harmless Aussie joke' might in fact fall squarely within the meaning of sexual harassment. 

As seen in the legislation, it is not a matter of whether the person harassing might have anticipated an adverse reaction from the person harassed. The relevant threshold in gauging the reaction from the viewpoint of the ubiquitous 'reasonable person'. 

global reach - the #metoo campaign

We watched the tsunami of the '#metoo' campaign encouraging women across the globe to share their experiences of sexual harassment, by using the simple hashtag across social media. The campaign has shed valuable light upon the prevalence of sexual harassment in society. 

Both women and men have been subjected to unacceptable words and acts - often without support or a sufficient avenue for redress. We are beginning to understand that sexual harassment is blind to gender, with men becoming susceptible to this behaviour - as the matter of Kordas shows. 

Unique questions arise for employers when we consider the various social media platforms being used by women to spread this message. If a person hashtags #metoo from a workplace, the employer might well have an obligation to follow up on this informal notification. Certainly, if there are subtle or overt signs of a connection between the claim and work, an investigation of possible workplace sexual harassment might well be advisable.

THE extreme and the ugly...

As noted, 2017 could certainly be considered the year in which the issue of sexual harassment hit the headlines in a major way. In the United States, the verbal and physical exploits of Hollywood's Harvey Weinstein became part of a horrifying litany of sexual harassment occurrences in the workplace. Similarly in Australia, media personality Don Burke has faced extensive allegations of sexual harassment in the workplace, stemming across many years in his work as the nation's 'gardening guru'. 

Yet it is arguable that such extreme cases do little to assist the public's understanding of the more fine-grained aspects of workplace sexual harassment. Across Australian workplaces, only a small percentage of workers who have been sexually harassed will report the behaviour. In general, this is due to the fact that sexual harassment is only understood to be the kinds of egregious, physical acts that have made media headlines in 2017. 

The subtler acts of sexually-based joking, leering, cornering, propositioning and unwanted affection are less likely understood by workers (and even some employers) as being what they are - sexual harassment. How to keep such harassment at the forefront of employer thinking into 2018 and beyond, is the challenge. 

risk of ignorance 

When whispers and talk arise about an incident of sexual harassment, employers need to pay close attention. If an employee approaches management with a concern, it is important to understand that verbal notification of sexual harassment is generally all that is needed. 

Those subject to harassment are not required to make a formal, written complaint. The risks of not acting on an informal, verbal notification of unacceptable behaviour can be high, as demonstrated by the cases of Trolan and Matthews. Employers in this situation have faced mounting costs associated with statutory and common law claims - not to mention the operational costs of allowing sexual harassment to occur in the workplace initially.

workplace vulnerabilities 

Workplaces where rank and hierarchy exist - such as emergency services and the armed forces - can be particularly susceptible to occurrences of sexual harassment. In the recent NSW case of Torres v Commissioner of Police [2017] NSWIRC 1001, the Commission noted that part of the problem with the senior constable's lewd behaviour stemmed from these displays being forced upon more junior colleagues. His dismissal was found to be warranted in light of the gravity of his sexual harassment at work. Those in lower positions can feel that they have no option but to accept the behaviour. 

Taking advantage of junior and/or more vulnerable workers can also be evident in low-paid and transient industries. Recent unsavoury cases of sexual harassment have been found to have occurred in farming and horticultural industries where transient workers are open to abuses by employers and permanent staff. Similarly, in hospitality workplaces, junior staff are particularly prone to sexual harassment. Age, time in the role, and financial necessity are just some of the vulnerabilities that can lead to harassment.

workplace sexual harassment policies crucial

The importance of having meaningful and accessible workplace sexual harassment policies cannot be overstated. It is not enough to simply email staff about a generic policy on sexual harassment in the workplace. And it is also not satisfactory to do the bulk of education activities at the point of recruitment. 

Like any workplace risk, sexual harassment needs to be monitored across time and in the context of each individual work site. Policies should remain living documents that provide robust responses to any unacceptable workplace behaviours. 

The costs of failing in this area include not only money and time, but also that most valuable of corporate commodities - reputation.

strong but subtle RESPONSES

2017 brought sexual harassment in the workplace front-and-centre for the global viewing public. Tales of power gone astray and a culture of staying quiet have all led to the situations that have dominated the headlines in recent months. There is no denying the importance of bringing such stories to light. However appropriate workplace responses will not simply engage with the worst types of sexual harassment, such as we have heard about recently in the media. Active employers will necessarily source the best and most responsive policies, addressing all issues that might allow sexual harassment to fester and grow in the workplace. 

Hopefully, 2018 will be the year in which all employers develop responsive workplace systems designed to detect the earliest threat of sexual harassment across every site. If you need assistance, WISE Workplace can help with sexual harassment policies, training and investigations.

Crossing the Line: Flirting vs Sexual Harassment

Vince Scopelliti - Wednesday, November 29, 2017

The recent media attention on sexual misconduct in Hollywood is a turning point; what may have been considered 'innocent flirting' in the 70s and 80s is increasingly being called what it is - unwanted harassment. The public condemnation of film mogul Harvey Weinstein's conduct has emboldened people to come forward with allegations of sexual misconduct against other celebrities, in what some have described as the 'Weinstein ripple effect'. 

There has been a significant shift in recent years in the way the criminal justice system conceptualises consent, and this has likewise affected the perception of harassment. 

Although the Hollywood allegations are of a serious nature, with some amounting to sexual assault and rape, they have also cast the spotlight on work relationships in journalism, entertainment, politics and the everyday workplace -'the office'. The question arises: what constitutes sexual harassment in 2017?

legal definition of sexual harassment in australia

Although many assume that sexual harassment must occur between a man and a woman, in Australia this is not the case - it can take place between persons identifying with any sex or any gender. 

According to the Sex Discrimination Act 1984 (Cth), 'sexual harassment' includes unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature - the key element being that the behaviour is not welcomed by the recipient. 

The conduct needs to be assessed from the viewpoint of a reasonable person and whether the reasonable person would consider, in all the circumstances, that the recipient might be 'offended, humiliated or intimidated' by it. 

Even more seriously, sexual assault includes a person being forced, coerced or tricked into a sexual act against their will and without their consent. If the victim is a child, it's sexual assault regardless of any apparent consent. 

In cases where sexual assault is alleged in the workplace, the complainant needs to be advised that they can make a complaint to the Police. 

Should the conduct involve a minor, it may constitute 'reportable conduct' - which is required to be reported in accordance with the relevant state legislation, as well as to the Police. 

SO, is it flirting - or harassment?

Many interpersonal interactions between employees are, particularly in their early stages, subtler and more ambiguous than clear examples of harassment. Smiles, winks, compliments, sexual innuendo and humour, suggestive glances, or even a touch on the arm or shoulder could be seen by some as innocent flirting - but perceived by others as harassment. Recipients of such behaviour may wonder whether these comments and behaviours are friendly or sinister in nature, intentional or accidental, a one-time event or likely to persist. 

When determining whether behaviour might be sexual harassment, it can be made clearer by answering some important questions, such as: 

  • Does the recipient seem uncomfortable or fail to respond to comments or discussions?
  • Is one person involved in the conversation in a position of authority?
  • Could the person making the overtures impose real professional consequences on the recipient if they were turned down?

the role of touching in sexual harassment

It is clear that engaging in unwanted touching is an even more serious offence than making offensive or inappropriate comments or suggestions. For this reason, many employers consider it prudent to ban physical contact in the workplace beyond simple handshakes. Of course, this can also have an impact on how friendly the workplace is perceived as being, so depending on your workplace, it may be more appropriate to closely monitor physical interaction rather than ban it outright. Generally speaking, however, those in positions of power such as managers or supervisors should avoid physical contact where possible. 

the role of power and status

Interestingly, studies have revealed that some men in positions of power find their roles inextricably linked to sex - meaning that they struggle to differentiate between women (or other men, if that lines up with their sexual orientation) who are sexually responsive, or who are simply being friendly. For many reasons, not least to protect a business against potential claims of harassment, employers must do their best to minimise the potential for any inappropriate conduct to occur between managers and supervisors and staff. 

So what should employers do?

Employers have a duty of care to their employees to make sure that they are safe and protected while at work. Employers must have clear policies in place on what types of behaviour are considered to be sexual harassment, and how complaints can be made. Policies should be well communicated to all staff, and staff should be educated on what is expected of them regarding behaviour in the workplace. 

In order to protect your business and staff against flirting going too far and turning into sexual harassment, contact WISE Workplace today for expert assistance with workplace investigations, anti-sexual harassment training and assistance with reviewing or drafting your policies.  

When Gender is Irrelevant: Male-On-Male Workplace Harassment

Vince Scopelliti - Wednesday, November 08, 2017

Sexual harassment and predatory behaviour can happen to anybody. When most people think about this type of conduct, it is generally in the context of male-to-female harassment or, perhaps more rarely, female-to-male harassment. However, this is simply not the case - sexual harassment can be perpetrated by anybody towards anybody. 

A recent decision of the Civil and Administrative Tribunal of NSW highlights the potential for employees to be victims of sexual harassment and victimisation in the workplace, regardless of their gender. 

The decision in Kordas v Ruba & Jo Pty Ltd t/a Aztec Hair & Beauty also affirms the entitlement of workers to financial compensation when they have been subjected to sexual harassment. 

Inappropriate behaviour

In Kordas, the worker complained about various instances of inappropriate behaviour and sexual harassment during his employment as an apprentice hairdresser working for the respondent. 

The behaviour complained of by the worker included:

  • Being told by his employer that workers were similar to racehorses because 'they need a pat on the bum to go faster'.
  • Having his supervisor tell clients that he and the worker were similar to a gay couple and that they were very 'close'. 
  • Being followed into a private area, slapped on the buttocks with a ruler by his trainer and being asked to smack him back because the trainer 'like[d] being slapped on the bum'.
  • Humiliation by the trainer when he threw a hair clip onto the ground, in the worker's opinion, because the employer wanted to see him bend over. 
  • The trainer complaining that the worker had incorrectly clipped a cape onto a client
  • Feeling harassed when the worker asked the trainer if he felt they got along and the response was yes, because 'you're my bitch'. 
  • Upon complaining to his employer and asking why he was referred to as the salon 'bitch', being told 'I used to work in a restaurant. All the boys used to grab me by my boobs'. 
  • Being grabbed around the waist and physically moved by his supervisor instead of being asked to move out of the way. 
  • Having his palm stroked in a flirtatious manner by his employer when he was handed money for errands. 

The worker had initially complained to his boss, who was also the director and owner of the business running the hair salon, about being victimised. But no action was taken, and the worker was ultimately dismissed. 

The history of complaints

The apprentice stated that he had not complained initially about the inappropriate behaviour because he had wanted to keep his job. 

However, in February 2015, the worker finally complained to the employer about various issues he was experiencing, including very low wages, ongoing harassment and feeling that he was being sabotaged. Although the employer initially promised that everything would be sorted out, he then made the above mentioned comment, likening hairdressers to racehorses. 

At this time, the worker demanded changes in his treatment, but the employer denied ever having received any complaints or personally witnessed any harassment. 

The employer then advised the worker that there were no senior staff available to continue his training and dismissed him. The stress and emotions suffered by the worker as a result of this treatment ultimately caused him to leave his chosen profession of hairdressing, working instead as a barber. 

Findings of the tribunal

Upon hearing the complaints, Tribunal Senior Member Scahill and General Member Newman commented that although the harassing behaviour was not the worst they had ever seen, it had clearly impacted upon the apprentice in a very significant way and had caused him to change his future career plans. 

The nature of some of the inappropriate behaviour was found to be sexual harassment, particularly the physical contact and comments regarding being a 'bitch' and a 'gay couple'. Moreover, the significant disparity in power between an employer or senior employee and an apprentice was such that the worker was reasonably and clearly intimidated, humiliated and harassed. 

The employing business was also held vicariously liable for the conduct on the basis that it had failed to ensure a workplace free of harassment and had failed to appropriately respond to the worker's complaints. 

The worker was awarded compensation comprising:

  • $5,000 in general damages for the sexual harassment by the employer
  • $10,000 in damages for the trainer's sexual harassment
  • $15,000 for victimisation

As this case demonstrates sexual harassment and inappropriate conduct can occur in any workplace, and between any gender. If you are concerned about a case of potential harassment at your organisation, contact us for assistance. We offer both supported and full workplace investigation services. 

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.

The Key Warning Signs of Grooming and Sexual Manipulation

Harriet Witchell - Wednesday, March 22, 2017

warning signs of grooming

As the Royal Commission into Institutional Responses to Child Sexual Abuse has painfully revealed, our most trusted institutions have at times mishandled some of the worst cases of child abuse imaginable.

It is becoming clear to us as a nation that the trust given by children and other vulnerable people to individuals in positions of power is boundless. And it is this trust that can become hijacked via the insidious tactics of grooming and sexual manipulation.

Standing outside of the abhorrent situation, we might ask – how on earth could this happen? Wouldn’t a sexual predator be immediately visible to an employer in a child-focused setting? However, grooming and sexual manipulation work in such a subtle way that even other adults close to the situation can be lulled into a false sense of security.

The new NSW legislation on Reportable Conduct has commendably included grooming as a distinct behaviour that must be reported in child care contexts. It is therefore essential that all child-related employers become aware of the warning signs of child grooming and sexual manipulation in the workplace.

Warning Sign 1: The special relationship

Grooming behaviour can manifest as the slow development of a special relationship between a worker and a particular child or children in care. This might involve the giving of privileges, compliments or treats that might be held back from other children. The child can develop a strong sense of trust and even enjoyment from this relationship, particularly if fun and friendship appear to be the key drivers. Such children might previously have been at the less-confident or lonely end of development, with the perpetrator appearing to have commendably ‘drawn out’ the child.

Warning Sign 2: Returning favours

Once a seemingly trust-based relationship is in place, the perpetrator of child abuse will often connect their special gifts and words with requests for touching and/or emotional favours from the child in return. At first this might not seem like an unpleasant or abusive situation in the mind of an innocent child – after all, they have identified this adult as a friend to be trusted. Observers might in fact see a child drawn to a particular carer quite intensely. It can be heartbreaking to think that this could be the middle stages of a targeted grooming strategy.

Warning Sign 3: The conflicted or ‘acting out’ child

When behaviours gradually move into sexual talk, touching or more overt acts, the perpetrator of child abuse can take a more sexually manipulative stance against the child. The child might resist the abuser, but can be manipulated into continuance of the inappropriate relationship through emotional blackmail. One of the earlier favours granted to the child such as gifts, treats or special games might be threatened or recalled. The child can then become anxious and in some cases will actively seek to appease the sexual abuser. Observers of the situation might see contradictory signs between the once-friendly employee and child. Behaviourally, the child could lash out at others or experience a regression in development.

Make knowledge your strength

Thankfully there is now so much research occurring around grooming behaviours and sexual manipulation in care settings. Further, Australian legislatures are slowly but determinedly developing laws to protect children and to enable the effective reporting of inappropriate conduct in the workplace.

Child sexual abuse tends to arise not from some caricature of an evil villain but in fact via a subtle conflation of grooming, manipulation, child vulnerability and institutional ‘blind spots’. Codes of conduct and training on professional boundaries are just some of the methods that can assist employers in combating the scourge of child sexual abuse by carers.

We actively investigate and advise upon issues within child-focused workplaces. In addition, we have handled grooming complaints between remote student teacher networks, top sporting organisers and athletes, elderly residents in a mixed care facility, bus drivers and passengers, disabled individuals and in-home carers. Every case requires skill, sensitivity and an unbiased examination of the evidence.

Join us in our enduring quest to make workplaces safe for all concerned - not just owners and workers, but for those precious Australian children who inherently trust the adults around them. We are proud to be presenting purpose-built training on Abuse in Care in coming months. Give us a call for further details.

Abuse by Carers - Defining a Sad Reality

Harriet Witchell - Wednesday, March 01, 2017

It is quite clear that employers in aged, disability and other care environments do their best to keep staff and clients safe, yet one dark phenomenon that can raise its ugly head in care contexts is abuse by carers. For many complex reasons, vulnerable people such as the aged, children, and disability clients, can be abused by the very people who are entrusted with their wellbeing.

‘Abuse’ is a broad term that has developed multiple sub-definitions in recent decades. We have seen the basic idea of physical abuse making room for more complex forms such as emotional abuse, sexual abuse, financial abuse and disability abuse. As Australia has witnessed via the recent Royal Commission, child sexual abuse has a truly distressing history. 
When an allegation of abuse by a carer arises, investigating the abuse objectively becomes a number one priority. Reportable conduct legislation is now developing across all states and territories; it is essential to understand definitional issues as reportable incidents arise.

Physical acts and omissions

Assault is perhaps the most common of the physical offences experienced in care environments. Rough handling of a client or patient can occur in any number of scenarios such as moving, changing, bathing, providing medication/ injections and feeding. And omissions such as failing to provide food, warmth, medication or post-fall assistance can also amount to offences of neglect. We often see this neglect as a form of abuse of the disabled or elderly. Feeding and changing neglect can also occur as a form of child abuse in care environments. Establishing what is truly accidental versus what is indisputably abusive is a very difficult task indeed.

The question of intent is certainly difficult, and investigations of abuse must weigh the elements involved in defining reportable conduct. For example, what appears at first glance to be abuse might turn out to be an accident or one-off omission.

Sexual abuse and manipulation

It goes without saying that children are one of the most vulnerable subsets of society, particularly in care situations (whether due to disability or family circumstances). Children are also frequently the target of sexual abuse or its precursor, grooming.

In almost all occasions of longer-term sexual abuse, the perpetrator undertakes a grooming process, designed to obtain the trust of the intended victim.
These behaviours can include paying undue attention to one specific care client, engaging in keeping secrets, purchasing gifts or trying to establish independent communication channels.

Once the grooming has taken place, and the abuse has commenced, the child or adult care client may act out, which is demonstrated by either an overtly hostile relationship with the carer (such as avoiding them or engaging in public conflict with them) or an unnaturally close relationship, which may be based on an attempt by the client to appease or satisfy the abuser.
 
The above red flags, identified by the Royal Commission into Institutional Responses to Child Sexual Abuse, must be understood by workplace investigators in order to ensure that the most vulnerable potential victims are best protected.

Non-physical abuse by carers

Due to changing values in both public and private settings, the term ‘abuse’ now has a wider and more complex scope. Psychological, financial, and emotional abuse at the hands of carers is now a real hazard across multiple industrial contexts.

Some paid and unpaid carers of the aged, older children and the disabled have been known to trick, steal and/or cajole financial benefit from their charges. This can of course provoke angry and emotional responses from all parties involved, not least of which can be outrage from loved ones. One difficulty that investigators face is gathering material from a shaken and, in some cases, infirm victim. It is essential that specialist investigative expertise be employed in such cases.

High evidentiary standards

In the criminal realm, the evidentiary standard is quite high in cases of alleged criminal assault and/ or neglect by carers. Up-to-date legal advice on these and related issues is essential if a reportable incident is suspected.

For many employers who are made aware of alleged abuse by a carer, it can be hard not to react swiftly against this individual. However, all parties are entitled to be heard in a fair and unbiased way.
For example, an unexplained injury might not signify abuse by a carer, but an undiagnosed medical condition.

The ‘culprit’ might be assumed to be a carer who sees the elderly, disabled or young client each and every day. Yet transitory people in carer environments such as cleaners, aides and kitchen staff must also be carefully vetted whenever allegations of abuse surface during a workplace investigation. Investigators must resist the temptation to draw inferences or assumptions throughout the investigation.

Understanding the way abusers work and the nature and pressures on carers are critical for investigators. Knowing how to define and classify behaviour is a crucial component of determinations over abuse allegations.
These details and advice on what evidence to collect, and how to evaluate evidence are all covered in our new Investigating Abuse in Care course. Positions are still available for courses in March and May 2017. Book now to secure a seat! 

No harassment no unfair dismissal - ruling clears Energy Australia

Harriet Witchell - Tuesday, April 01, 2014

On March 25th, an application against Energy Australia made by a former director of corporate affairs was dismissed at the Federal Court by Justice Julie Ann Dodds-Streeton. Former Energy Australia employee Kate Shea claimed that she had been made redundant in 2012 as retribution for sexual harassment complaints made previously and this was found not to have been the case.

Justice Dodds-Streeton stated that Energy Australia had sound business reasons for making the redundancy and Ms Shea’s claims had no reasonable basis and were made for personal gain rather than in good faith.

The allegations

The claims that were previously made against Energy Australia included allegations that managing director Richard McIndoe was previously involved in sexual harassment against a female employee at a party in 2006. Ms Shea also claimed that she had been the victim of sexual harassment in 2010 by then chief financial officer Kevin Holmes and that Energy Australia had a corporate culture in which sexual harassment was condoned.

An investigation was undertaken relating to Ms Shea’s complaints in 2011 and the results found that although Mr Holmes had made contact with her he had not sexually harassed her. After the investigation, Ms Shea sent a letter to Mr McIndoe accusing him, along with the CFO and the company’s HR director of concealing evidence and working to cover up a culture of sexual harassment within the organisation.

The letter is said to have contained a number of demands including one for a financial settlement, and threats that if the demands weren’t met in a specific time frame the letter would be sent to Energy Australia’s parent company in Hong Kong, CLP Holdings Limited. Ms Shea received a sum of $133,000 and returned to work in October 2011. She and her personal assistant were made redundant four months later after a company restructure.

The outcome

Justice Dodds-Streeton noted that Section 341 of the Fair Work Act 2009 has not yet been thoroughly tested from a judicial standpoint, and that there are still a number of significant aspects which are left unaddressed. Although there is no requirement for complaints made against a company to be justified or for an accusation to be true or proven, there is still a requirement for claims to be reasonable and genuinely held by the complainant. According to Justice Dodds-Streeton, the claims made by Ms Shea weren’t made in good faith but purely from the motivation of financial gain. The judge stated that she wasn’t convinced that Ms Shea had any real belief that her former colleagues’ conduct amounted to sexual harassment and this was apparent in her conduct as a witness.

The judge also determined that complaints made against an organisation need to be underpinned by a right or an entitlement. In Ms Shea’s case, there wasn’t enough of a connection between the alleged misconduct of Mr McIndoe against another female employee and the employment of Ms Shea.

Ms Shea had been seeking reinstatement and lost earnings which would have amounted to around $6M. The judge ruled out reinstatement, due to the fact that the trust required for an employee/employer relationship was gone. Energy Australia and the employees involved were cleared of any allegations of harassment and misconduct and the redundancy was found to have been made for sound business rather than personal reasons.

Using ‘Tendency’ Evidence in Sexual Harassment Matters

Harriet Witchell - Tuesday, September 17, 2013

 

By ALISON PAGE, Legal Counsel

Often it’s not a one-off event; investigations into alleged sexual harassment frequently reveal that on previous occasions the respondent has faced other accusations of inappropriate conduct against fellow employees. This evidence is traditionally known as “similar fact evidence” or “tendency evidence”.

When the investigator considers each alleged incident in isolation, he or she may find insufficient evidence to establish sexual harassment. However, when these events are considered as a series, it may establish a pattern of sexual harassment.

This poses the question: should the investigator use these other incidents to decide whether there is sufficient evidence to establish a tendency by the respondent to engage in the alleged conduct?

For the first time, a recent interlocutory decision in the Federal Court Robinson v Goodman has set a precedent, by establishing judicial guidance about the admissibility of this contested “tendency evidence”. It’s guidance that can also help workplace investigators.

In this case, the owner of a well-known clothing brand was responding to allegations of sexual harassment under the Sex Discrimination Act 1984 (Cth). The respondent was also facing similar allegations in other proceedings, brought by a former employee.

The respondent admitted that certain events did occur, but disputed that the acts were sexual in nature. Justice Mortimer maintained the respondent’s behaviour towards the former employee applicant and a further former employee, established a tendency to “engage in a calculated pattern of sexual pressure and harassment”.

Although Justice Mortimer accepted that criminal cases concerning sexual offences may assist to decide whether tendency evidence is admissible, ultimately the question must be determined on the civil standard, based on the words of section 97 of the Evidence Act 1995 (Cth).

According to Justice Mortimer, section 97 requires a two step process:
1. Is the evidence relevant? This requires consideration and identification of:
a. what facts are disputed about the alleged misconduct of the respondent.
b. the precise details of the tendency evidence.
c. whether the tendency evidence is capable of proving a tendency to behave in the alleged manner.

2. Does the evidence have “significant probative value”?
Probative value” is defined in the Act as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”.  To answer this question, one must weigh up the impact that the tendency evidence could have on the existence or non-existence of the facts in issue.

The following factors may also be considered:
a. the cogency of the tendency evidence
b. the strength of inferences drawn from the tendency evidence as to the tendency of the respondent to act, speak or think in a particular way,
c. the extent to which the tendency evidence increases the likelihood that that a fact in issue did occur.

Assessing the facts before her, Justice Mortimer said it was important to look at similarities in the overall circumstances, when deciding whether to admit tendency evidence. She identified the following broad similarities:

  • Both cases involved employees.
  • The respondent was their boss, the company owner and controlled business operations.
  • Both cases involved attractive females.
  • Both cases involved similar events (e.g. buying trips, fit sessions, photo shoots).

Justice Mortimer maintained that much of the evidence was admissible, although conduct too far in the past, which was not similar enough to the allegations or too general was not admissible.

As a closing word of caution, in accepting tendency evidence, investigators must also apply principles of procedural fairness; such as giving the respondent an opportunity to respond to adverse information that is credible, relevant and significant to the ultimate determination of the investigation. Otherwise, they may risk prejudice arising from their decision (Lohse v Arthur (No 3) [2009] FCA 1118)

Investigation ‘bungled’ in sexual harassment case

Harriet Witchell - Thursday, August 01, 2013

 

By ALISON PAGE, Legal Counsel -

Earlier this year, the Queensland Civil and Administrative Tribunal determined a sexual harassment case in which the Tribunal member described the employer’s initial investigation as ‘bungled’.*

The Tribunal accepted that the HR department was hard pressed, understaffed and overworked. However, the cautionary tale from this case is that this will be no excuse for failing to conduct proper workplace investigations.

This article considers the employer’s mistakes with its investigation to help you avoid having your workplace dirty laundry aired publicly before courts and tribunals and attracting negative publicity.

Background
The complainant had worked for a number of years running the buffet at a resort in Queensland. The respondent was a chef at the resort.

In early March 2010 the resort was preparing to host a golf tournament. It was a particularly busy time for the buffet and the kitchen.

The inappropriate conduct
The Tribunal found that the respondent sexually harassed the complainant over a period of three days during various incidents including:

  • Sniffing the air in the vicinity of the complainant
  • Commenting that she smelt like “Old Spice”
  • Commenting that he recognized the scent of “Old Spice” as his grandfather gave him some
  • Asking if anyone else could smell “Old Spice”
  • Referring to the complainant as a cougar and making growling noises
  • Leaning close to the complainant when sniffing the air and growling in her ear and around her neck
  • Asking her for one last growl before she left

The Tribunal found that the complainant did not encourage this behaviour. At first she put up with it. She ignored the respondent and tried to get on with her work. She believed she demonstrated her discomfort with the respondent’s remarks. However, the respondent was ‘insensitive to her reaction’. Eventually, the complainant berated and admonished the respondent in front of other work colleagues. She told him that what he was doing was unnatural and disgusting. However, the respondent continued to harass her. Finally, the complainant told the respondent that he was an arsehole and that he should “f-off”.

The Tribunal also found that the respondent’s conduct described above amounted to:

  • sex discrimination because the respondent would not have treated a man the same way;
  • age discrimination because the respondent would not have treated a younger women the same way.

The facts in this matter constituted a clear case on inappropriate workplace behaviour. These complaints should have been dealt with internally without the need for the complainant to seek legal redress.

So what went wrong? And why did this matter end up before the Tribunal?

The investigation
Regrettably, the employer’s inadequate handling of its own investigation led the complainant to the Tribunal and also caused her to add several counts of victimisation to her claim (although ultimately the victimisation claims were not found).

The complainant initially raised her complaint with her supervisor and then the general manager who in turn, asked the HR manager to investigate the matter. Rather than interview the complainant herself, the HR manager gave the supervisor a statutory declaration form for the complainant to complete. When the supervisor handed this to the complainant, she said words to the effect that the HR Manager wanted to know ‘what she expected to achieve by all of this’.

The complainant and the HR manager met to discuss the matter and how it should proceed. The complainant became very upset when the HR manager denied having heard or witnessed the complainant admonishing the respondent, even though she was present at the time. The complainant accused the HR Manager of covering up for the respondent.

About three days later, the HR manager handed the investigation to head office’s Employee Relations and Remuneration manager who on completing the investigation found that the complaints were not substantiated.

In view of the Tribunal’s decision, the investigation findings are surprising. Indeed, WorkCover was also able to conclude ‘without a doubt’ that the events complained of did occur and caused the complainant injury.

So how could the investigation findings be so wrong?

The investigation was flawed in several areas:

  1. The HR manager did not interview the complainant before asking the respondent to prepare a statutory declaration. Rather, she relied on the barest information about the alleged incidents given to her second hand via the resort’s general manager;
  2. The HR manager believed it was not her role to prompt the respondent with full details of the complaint. The complainant’s complete allegations were never fully put to the respondent for his comments. His statutory declaration only covered what he thought was important. 
  3. It appears that on handing over the matter to head office, the HR manager did not hand over all relevant materials, most importantly her interview notes with the respondent.
  4. Not all witnesses who may have overheard interactions between the respondent and the complainant were interviewed and those that were, were not specifically asked whether the matters complained about had happened.

Following a few basic investigation rules and processes would have avoided these errors (particularly rules of procedural fairness).

* McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243

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