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How will you respond to a complaint of misconduct? Can you do better?

Blue desktop with laptop keyboard, coffee, smartphone, pen, notepad and glasses. Icons of harassment depicted by yelling and touching. WorkPlacePLUS branding.

Following a steady flow of high-profile workplace sexual assault allegations reported in the media earlier this year, the Victorian government announced a new taskforce to develop reforms that will prevent and better respond to workplace sexual harassment. This will include a mandatory incident notification scheme requiring employers to report misconduct to authorities such as WorkSafe.

In addition, based on recent amendments to the Fair Work Act 2009, an employee who reasonably believes they have been sexually harassed can now apply for the Fair Work Commission (FWC) to intervene by issuing a "stop sexual harassment" order. These new FWC powers, which commenced on 11 November 2021, are one of the outcomes of the Sex Discrimination and Fair Work (Respect at Work) Amendment Act 2021.

Employers nation-wide are already obligated under work, health and safety (WHS) laws to provide a safe working environment, which includes the prevention of workplace bullying and harassment. Both Victoria's proposed mandatory incident notification scheme and the new nation-wide changes from the Respect at Work Act are turning up the heat on employers to do the right thing and respond appropriately to complaints of workplace misconduct.

Regardless of your state or jurisdiction, or the size or sector of your workplace, these are the three key areas that every employer needs to proactively manage:

1. WHS policies and procedures. This includes knowing how to implement and enforce your bullying & harassment policy, your code of conduct and ethics, your mental health strategy, your complaints & grievances policy, your performance management policy, your conflict resolution process, and your disciplinary process. Providing regular training sessions to all employees, including the senior leadership level, is an important factor in ensuring that everyone understands the rules and expectations in your workplace.

2. Procedural fairness. This is the ethical, best practice way of handling workplace conflict. It is not enough to pay lip service to your “zero tolerance” policy. Employers need to take complaints seriously, respond in a timely manner, conduct a fair and confidential workplace investigation, follow a communication plan to discuss the matter, give the parties involved plenty of notice and time to prepare and respond, offer the parties the option to bring a support person, and provide a timeframe for any decisions or further action. Hiring an independent workplace investigator may the most suitable option for some employers.

3. Risk and workplace culture. It is important that employers dig deeper to uncover the underlying issues that are causing incidents of misconduct to occur. Risk management is a stepped process of identifying hazards, assessing risks, controlling those risks and then reviewing the efficacy of control measures over time or in response to an event. Regular cultural reviews allow employers, senior management and the board to proactively identify and mitigate any potential red flags or common themes that may need to be addressed.

As discussions around workplace sexual harassment unfold in the media, and the consultation process for the proposed mandatory incident notification scheme is underway, employers are reminded to consider ways to take better care of your employees, including responding appropriately when issues or concerns arise.

For more information, or to receive tailored advice, please contact us today.


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