A recent sexual harassment case shows that even small businesses need to have a safe and healthy workplace culture.
Small businesses sometimes lack the resources to support someone who is claiming sexual harassment and can also lack the resources to look into the allegations.
HRM looks at a recent case, and speaks to an expert about when HR is brought in to help workplace investigations in smaller businesses.
A Brisbane based solicitor who owned and operated his own small practice (only hiring two to three people at a time) was ordered to pay $170,000 in damages by the The Federal Circuit Court of Australia (FCC) to his former paralegal who suffered a psychiatric injury after he subjected her to months of sexual harassment.
The paralegal began working for the solicitor in May 2015. The solicitor thought the paralegal was attractive, and wanted to be in a sexual relationship with her and expressed as much via persistent emails.
The solicitor also knew a great deal about the paralegal’s personal life which he used as a way to encroach on her and frame within several emails that he knew her very well and “felt 100 per cent comfortable” with her.
“This is a very grave exploitation of that relationship,” says FCC Judge Salvatore Vasta.
Speaking to HRM about the case, director of workplace relations at iHR Australia John Boardman agrees with Vasta and says in the workplace investigations he’s conducted “there is frequently a process of some grooming.”
The paralegal had moved to Brisbane so her child could be close to her ex with whom she had to enter into mediation. The solicitor offered his legal assistance with that and asked the paralegal to assist him in a family law matter in Sydney. He suggested they stay with his brother in Sydney and she could have her own room. Clearly uncomfortable, she planned to bring her son with her.
The paralegal’s mediation didn’t go the way she wanted, and it seems the solicitor used this to both express sympathy and highlight how much he did for her.
“I have worked hard for you with passion and I hope in time you might come to appreciate my efforts,” reads one of his emails to her.
When the two went to Sydney for the different legal matter, the paralegal’s son did not come with them (it is unclear why), but a mattress was still set up on the floor next to her bed. When she came out of the shower one evening she saw the solicitor on the mattress dressed only in underpants. He would not leave the room unless she gave him a hug. After this incident, the paralegal became more vocal about how uncomfortable the solicitor was making her. In retaliation, the solicitor threatened her position at the company.
“All cool if you want to just work for me [but] at the end of the day [I] would have a Ukranian [sic] woman working for me as well as you and you might be sorry you turned me down romantically,” the email reads.
The FCC found this case to be textbook sexual harassment.
“At its core, sexual harassment is a social practice of enforced inequality that demeans individuals on the basis of sex,” says Vasta when delivering his decision.
Vasta referred to section 3(c) of the Sex Discrimination Act which he says “seeks to address those workplace power imbalances that result from fear, silencing and the harms that flow from sexual hierarchy.
“The Court finds, unequivocally, that the conduct of the [solicitor] is the very conduct that the law of sexual harassment seeks to eliminate.”
Since the solicitor was also the business owner, there is no way he would bring in an outside person to investigate his own behaviour. But that doesn’t mean employees don’t have options. So what would have happened if HR was brought in to a similar situation?
A workplace investigation
Boardman has been brought into many workplaces as a consultant and he also has extensive experience in conducting workplace investigations.
To determine if sexual harassment has taken place Boardman weighs up evidence against the following factors:
- Whether the behaviour was unwelcome or consensual
- Whether the action or behaviour would make a reasonable person feel offended, humiliated or intimidated
- Whether the action was in fact of a sexual nature
“In this particular case it would have been fairly easy to establish from the evidence that [the solicitor’s] behaviour was unwelcome,” he says.
Boardman says small businesses often lack capability in-house to assist with sexual harassment as there may not be a support network in place or a dedicated HR department. And that lack of support is what allows for sexual harassment to continue.
“But small businesses do have the ability to see and hear the types of behaviours that were occurring in the case with the solicitor and paralegal – and his behaviour was really quite blatant.”
But the fact of the matter is that the owner of the business wasn’t going to conduct an investigation on himself – someone else would have to.
Boardman says it’s important that if the proprietor is being accused then there needs to be a plan in place to send the report of findings to someone other than the accused. That could be a board member, a business partner, a lawyer, etc.
“This is important because there may be witness statements from employees and they may not want their boss to read them.”
Prevention before cure
In order for the investigation to have a good outcome the organisation involved needs to be committed to making a safer workplace. It’s not enough to just bring someone in whenever there’s a problem.
“The bottom line is that if you bring expertise into the organisation you need to know you’re not outsourcing responsibility.”
Boardman says some small businesses may need to accept responsibility that they have failed if they don’t have any policies, procedures or training around sexual harassment.
Few things can be more challenging than handling a serious complaint of misconduct. AHRI’s short course will give you the skills necessary to conducting workplace investigations.
In contrast, a small business could be doing everything right but it only takes one person to corrupt workplace culture. This is exactly what he found in one of his investigations.
“They had somebody whose behaviour was not keeping with the policies and everybody knew it but nobody pulled him up on it,” he says.
To avoid this, employees need to be made aware of their organisation’s values. The organisation needs to acknowledge and insist to staff that any sexual harassment is not acceptable behaviour, and it expects them to call it out when they see it.
Boardman says that if a workplace investigation goes ahead and goes well then all parties will have walked away learning something.
“On top of that, if someone is acting in a manner that could cause psychological injury then removing that risk from the workplace means you’ve helped make it safer – that’s always the desirable outcome.”
Of course there are situations that may have had the right outcome but not the outcome you necessarily want.
“Sometimes you have sympathy for a complainant whose complaint is misconceived,” says Boardman.
Referring to a different investigation of his, Boardman says the individual involved was abused in her childhood, was in abusive relationships throughout her adult life, and was under the care of a psychiatrist for 18 years. The respondent in the sexual harassment investigation did not know about her history of abuse and psychological issues.
“He thought she was open and welcoming to his advances,” he says. “But because of her background she gave all sorts of mixed messages. But some people who were abused as children feel they have to comply.”
Boardman felt the evidence showed that the respondent’s behaviour would not be considered by a ‘reasonable’ person to constitute harassment.
“But I had a great deal of sympathy of the complainant – it’s vexing.”
Boardman is still conducting workplace investigations into sexual harassment – much to his own disbelief.
“You think with #metoo people would have got the message by now but unfortunately it’s not always the case. The day people start behaving is the day I can retire.”