No employer ever wants to find themselves conducting a workplace investigation. However, when difficult issues which require a formal inquiry arise, workplace investigations are vital to ensure that matters are dealt with appropriately and the workplace remains a safe, compliant and accessible environment for your staff.
The Pasadena Foodland case brought before the South Australian Employment Tribunal in November 2019 illustrates the dangers of failing to acknowledge and deal with workplace incidents properly, as well as the importance of having a fair and thorough workplace investigation procedure in place.
In May 2017, a worker in the juice bar of an Adelaide supermarket (‘Pasadena Foodland’) made a complaint of sexual harassment (including inappropriate physical contact) about the supermarket’s head chef. She made her complaint to a colleague and assistant store manager, and (after further sexually inappropriate conduct) to the store’s HR manager.
In response, the HR manager watched CCTV footage from that day, and decided there was “nothing of concern” in the video, so no further action was taken. The HR manager did nothing to preserve the CCTV footage, and it was automatically destroyed a fortnight later.
The worker was not advised of the outcome of her complaint until she approached her HR manager over a month later to enquire how the investigation into her sexual harassment allegations was progressing.
Ultimately, the supermarket and chef were ordered to jointly pay $30,000 in general damages to the complainant. This included payment for “psychological harm, suffering and hurt feelings” caused by both the chef’s actions and employer’s omissions. This outcome was in spite of the Tribunal also finding that the conduct complained of did not constitute sexual harassment “of the most serious kind”, nor did it “continue over a period of time”, and the employee’s economic loss had already been compensated through a worker’s compensation claim.
Pasadena Foodland tried to argue they were not vicariously liable for the chef’s actions on this basis that they had prevention policies in place about sexual harassment and discrimination. However, the Tribunal found the store had not taken reasonable steps to implement and enforce these policies, nor did they conduct a “prompt and proper” investigation in line with internal requirements.
WHERE DID THEY GO WRONG?
The Tribunal was pretty unimpressed with the actions taken by the employer to “investigate” the complaint.
In particular, it found the following actions demonstrated a failure by the employer to properly handle the complaint:
- footage was not preserved although it supposedly showed there were grounds for not pursuing the allegations;
- no notes or records were made in relation to the complaint and witnesses were not consulted to gain further information;
- the company only chose to formally investigate and escalate the matter to senior management when the worker’s union representative became involved;
- it wasn’t until a further incident in July 2017 that the chef was even made aware of the previous allegations against him; and
- once the company decided to look into the allegations in July, the HR and store managers were called into a meeting to discuss the footage together instead of having separate independent statements prepared.
KEY TAKE AWAY FOR EMPLOYERS: INVEST IN INVESTIGATIONS AND POLICY & PROCEDURE REVIEWS!
The outcome of this matter serves to emphasise the importance of taking workplace complaints and misconduct allegations seriously. Employers should:
- Invest in a proper investigation (as well as proactive policies and training) and/or engage an independent investigator to carry out the ‘meat’ of the investigation. This will save employers more in the long run – perhaps most importantly, it will protect an organisation’s reputation; and
- Ensure that company policies and procedures are effectively communicated, implemented and enforced. It’s not good enough to simply have a policy that prohibits bullying and harassment without following through and implementing the terms of the policy especially now that there is a positive obligation on employers to proactively prevent and eradicate sexual harassment in their workplaces following the Respect@work reforms recently introduced.
NEED SPECIALIST HELP?
Workplace Wizards can assist with creating a workplace that provides equal opportunities and is free from harassment, discrimination, and bullying. Our expert employment consultants are legally trained and have extensive experiencing in helping to review and design policies & procedures, conduct independent investigations into complaints, advise on diversity management, design, and deliver training, and conduct Workplace Culture Audits.
Workplace Wizards team also prepare company policies and Codes of Conduct to protect your business from risk. Contact us at Workplace Wizards firstname.lastname@example.org or 03 9087 6949.