A recent sexual harassment decision by the South Australian Employment Tribunal has found that a casual supermarket assistant was sexually harassed by her colleague. The Tribunal condemned the supermarket’s handling of the complaints and found them vicariously liable for the actions of their employee as a result of its failures. Her Honour Deputy President Judge Farrell noted the case “highlights the need to ensure that employers conduct independent investigations and maintain proper records when complaints are made”.
Sexual harassment allegations
The supermarket assistant complained to management following a number of incidents where the Head chef pushed up against her with his hand squashed between her and his body. This report followed an increasing pattern of inappropriate behaviour including touching and walking past the assistant more frequently than was necessary in an “increasingly invasive, aggressive and sexualised manner”.
Following the complaint, the store manager and HR manager reviewed CCTV footage of the incident but decided there was “nothing of concern”, and the footage was automatically destroyed a couple of weeks later. A month after the complaint, the assistant was advised by HR that the footage “did not show anything inappropriate, and so no further action had been taken”.
Findings of the Tribunal
The Tribunal found that the managers involved were poorly equipped to conduct an investigation and made a significant numbers of errors and omissions with regards to their investigation process which included failures to:
- properly train their staff in relation to sexual harassment;
- take proper statements;
- put precise allegations to the respondent;
- speak to potential witnesses in a timely manner;
- conduct and complete an investigation into the allegations in a timely manner; and
- report the outcome of the investigation to the parties involved in a clear and timely manner.
The Tribunal determined that while the sexual harassment was “not of the most serious kind nor did it continue over a period of time“, the employer and the respondent were jointly ordered to pay $30,000 for general damages including “psychological harm, suffering and hurt feelings“.
Independent and timely investigations
Of particular note is Judge Farrell’s reminder that organisations “need to ensure that employers conduct independent investigations and maintain proper records when complaints are made”. Engaging an independent investigator can be a cost effective and practical way of ensuring that thorough investigations with clear outcomes occur in a timely manner. Outsourcing investigations is a wise investment when seeking to minimise exposure to risk. In this particular case, the supermarket was found vicariously liable for its employee’s behaviour as a result of its failure to properly investigate the complaint. In addition, the employer’s failure to adequately respond to the complaint exacerbated the impact on the assistant.
The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.