Being dragged through the courts and the papers on charges of sexual harassment: it can hardly get much worse for any company’s reputation, and that of its leaders.
For power company TRUenergy, the nightmare just won’t stop. As the company prepares for a $4 billion listing on the Australian Securities Exchange later this year, a former employee has filed legal documents saying the company allegedly mishandled her sexual harassment complaints, according to newspaper reports.
Sexual harassment issues are very common, Dr Paul Gibson, a principle of conflict resolution specialists, The Trillium Group, says. He estimates 200 cases are being handled by human resources professionals for every one case that makes it to the papers.
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So, what is best practice in handling sexual harassment issues, and how much can leaders do to prevent claims occurring?
Not all the experts agree on what constitutes a model process – which adds to the complexities facing leaders.
Our experts agree on the first two steps. Thereafter, their views diverge.
Act fast. “My advice is always to nip harassment complaints in the bud,” Gibson says. “It is usually when people are out on Friday drinks with mates. Something will happen and the social media connection means these people have got advice from mates before they get to work on Monday. It’ll be something like ‘these guys are bastards’, or ‘take him to the cleaners’. A wind-up happens, and by Monday morning, what happened Friday night is not seen in calm, detached way; it has got an emotional energy and people have made an appointment to see their lawyer.”
Peter Arthur, a partner at law firm, Allens Arthur Robinson, says the whole process – from taking full details of the complaint, deciding if there is a case, investigating it and making a decision – should take no more than two weeks. “One week is possible,” he says.
Take the complaint seriously and assume it is legitimate, but do not make any judgement about whether it is true.
Contact the human resources director.
Legal view: Obtain and write down the full details of the allegations from the person making the complaint, Arthur says. “Ask them what evidence there is in support of their allegation, what witnesses the company should speak to and documents, including emails, that would be relevant. Ask them what they want to happen. I have seen cases where the person making the complaint is so angry that the answer to that is: ‘I want to see his head on a platter’.”
If the complainant would be satisfied with an apology, this can be a possible end, but Arthur warns of legal implications for the accused. “An admission may have implications for his marriage, [and] his relationship with his children. It is not like negotiation for a settlement in a commercial matter where you want a million but will take half a million. Making any admission means so much.”
Conflict management view: Informal mediation. Have a conversation about the behaviour that has taken place with the two parties involved if they are peers. If the complainant is lower in rank, it may be possible to do informal mediation with a support person, or to proceed to the next step: formal mediation.
“I am trying to take a generous view,” Gibson says. “Sometimes behaviour is misinterpreted or misconstrued, and needs to be sorted out at the earliest possible time. I have been in a lot of situations where a person has said, ‘I am terribly sorry, I didn’t understand that you would feel like that. It wasn’t my intension to cause you stress.’ If the reparation is done quickly with the people involved, it can diffuse the situation.”
Legal view: Decide it there is a ‘case to answer’ based on the evidence provided by the complainant, using common sense, and canvassing the views of the HR director. “Once you get the full details, if it turns out they have been going on dates, and the argument is arising from personal relationship at work, it would be permissible for you to say, “At this point in time we don’t think the facts are capable legally of establishing a breach of the discrimination laws,” Arthur says. “It is a mistake to assume you always have to have an investigation into every allegation, no matter how flimsy. But you can’t leave complaint unattended: you have to look into them before deciding whether there is a case to answer.”
Conflict management view: Formal mediation: bringing in a third party mediator. “When a mediator is formally appointed, he or she is governed by rules and procedures. Things become more formal. Confidentiality becomes a critical element. A mediator would meet with each party separately before bringing them together – part of your role,” Gibson says. “There are all sorts of devices that mediators used to make people feel more comfortable, and address issues of perceived power and disadvantage. What they are trying to do is take the heat out of the situation before the parties become litigious.”
Once there is an exchange of legal letters, Gibson says the task is more difficult for the organisation and the mediator. “Parties have been given advice that reinforces a position, and it becomes a rights-based discussion.”
Legal view: If there is a case to answer, stand down the accused from their job. Do not stand down the complainant – who may see this as discrimination for making a complaint – but make it clear that a formal process is in place and that the accused in assumed innocent throughout that process.
Keep communication to colleagues vague: “John will be away this week. In his absence, please report to Philip.”
Appoint a fact finder – usually the HR manager, but in serious cases, a third-party investigator – to speak to all the people involved and write their findings and recommendations in a report. The first place the fact finder goes is to the accused. Appoint the person who will make the decision on their findings – usually the company leader.
Conflict management view: Even if the lawyers become involved try to mediate and settle the issue out of court. Keep all discussions confidential, and communicate as little as possible to broader stakeholders.
Legal view: With the findings, and the recommendations, the leader decides on a course of action.
If the complaint is proven, the consequence depends largely on seriousness of the breach and whether the two parties can work together or not. Mediation might mean that both can keep their jobs, continue working together or be separated into different work areas. The accused could be given a first and final warning, or they could be terminated. “In that case, they would seek legal advice about what would be appropriate: termination with notice or without,” Arthur says.
If the case is not proven, a leader may draw a conclusion about whether the complaint was simply impossible to establish, a misunderstanding or vexatious. “If it can be established conclusively that the allegation is false, a leader would consider action against the complainant including termination. But often there is no witness: it is just he said, she said.
“In cases where the claim is not proven, leaders need to reassure the complainant that her claim was taken seriously, was fully investigated but there in inadequate evidence. That doesn’t mean you don’t believe her; it means you can’t take action.”
Conflict management view: Once an agreement between the party is reached on the harassment issue (assuming the case has not become a legal one), negotiate agreement on communicating the matter to other stakeholders. “I try to resolve the issue, and then say, ‘Let’s now look at other people’s interest, such as the organisation and the human resources department, and your work colleagues. What do we say to them and how is it going to be done?’ ”
If the complaint turns out to be false, Gibson says there is usually another grievance with the company or between the parties that can and must be addressed.
Determine if the parties can still work together, or if one or other should be terminated.
A worrying thought
Gibson says a lack of leadership is largely to blame for harassment conflicts in the workplace. “One reason we see the issue as often as we do is a lack of leadership at all levels. If leaders are good communicators, build good relationships with staff and they are not the perpetrators, they can typically be responsive to staff. When a staff member comes and says I was at drinks on Friday, and this happened, an effective leader picks up the issue immediately, and says ‘Right, let’s talk about that’. I have a lot of regard the senior human resources managers, but the face of this is really the team or company leader.”