01:46, June 24 285 0 theguardian.com

2020-06-24 01:46:04
Natural justice is a golden rule of investigations. Has it been followed in the Dyson Heydon case?

Revelations this week that an independent inquiry initiated by the high court found former justice Dyson Heydon sexually harassed six young female associates has thrown the spotlight again on the prevalence of sexual harassment in Australian workplaces and how such complaints are handled.

Heydon, who has denied he engaged in any predatory or criminal behaviour, has criticised the process via his legal counsel, saying it was conducted “not by a lawyer, judge or a tribunal member. It was conducted without having statutory powers of investigation and of administering affirmations or oaths”. There have also been accusations of a lack of procedural fairness, with the Australian newspaper stating the women’s accusations “were not tested under cross-examination, nor weighed against Mr Heydon’s version of what happened”. The same report acknowledged Heydon declined to offer his version of events to the inquiry.

I cannot comment on any aspect of the particular investigation concerning Heydon or even speculate about what has been a confidential and lengthy process.

But what is standard procedure for investigating sexual harassment complaints of this nature?

The Australian Human Rights Commission’s recent report from the national inquiry into sexual harassment tells us 33% of people experienced sexual harassment in the workplace over the past five years. In the majority of cases, victims of harassment invariably do nothing even where their workplaces have zero-tolerance harassment policies and complaints processes. Even fewer people complain to bodies such as the AHRC. In 2018-2019, only 252 complaints concerned sexual harassment.

For the victims who take the step of making a complaint, the starting point is often electing to make an ‘informal’ or ‘formal’ complaint. Opting for an ‘informal’ complaint may mean having a chat with a sympathetic member of the human resources team, but nothing comes of the complaint.

Opting for a ‘formal’ complaint usually leads to an investigation. An investigation is not a solution to sexual harassment, it is a process. An investigation pits the victim (who becomes the complainant) against the alleged perpetrator, often a person who is in a more powerful or senior position. An investigation set up by an employer for an employer’s benefit rarely investigates why sexual harassment happened in the particular workplace or the failings of the employer. It is a process that shifts responsibility for making workplaces safe from employers to the personal conduct of complainant v alleged perpetrator.

So what happens when allegations of sexual harassment are investigated and an investigation is required? There is no law requiring employers to conduct investigations into workplace sexual harassment. For employers who want to remain neutral and treat both the victim and alleged perpetrator fairly, it is common to engage an ‘external, independent’ investigator to undertake what is commonly described as ‘fact finding’. One of the purposes of an investigation is to address sexual harassment ‘in-house’ and mitigate the risk of either the victim and/or a perpetrator suing the employer. An investigation should be a private and confidential process but may also lack transparency.

Making a ‘formal’ complaint usually triggers a process which follows some standard steps. The process can become formulaic, legalistic and protracted. It is not uncommon to hear that the investigation of a complaint is as traumatic as the incidents of sexual harassment. Workplace investigators do not need any specific qualifications. They may be human resources practitioners, public servants, trained investigators, retired police officers or lawyers. The best investigators are fair, organised, trained in trauma-informed approaches and are decisive. The best investigators are not always lawyers.

An investigator is expected to adhere to the employer’s terms of reference. A complainant is usually required to put her allegations in writing and provide specific details of what happened, when and how. For a victim who has endured unwelcome sexual conduct over a long period of time being asked to document what happened can be traumatic and distressing. Some complainants are interviewed to clarify their allegations. Victims report being asked questions about their attire, whether they consumed alcohol, whether they flirted or why they had not raised their complaints earlier. Victims may be made to justify why they have ‘come forward’ in the name of ‘testing’ their claims. These questions may leave the victim feeling she is not believed and responsible for the perpetrator’s conduct. Not all investigators such take an approach. Many provide victims with a safe and confidential environment in which complainants are believed and provided with appropriate support.

Natural justice is a golden rule of investigations. Natural justice (sometimes called procedural fairness) requires an investigator to be fair, listen to both sides and not prejudge the outcome of the investigation. One feature of natural justice is to give an alleged perpetrator the opportunity to know and reply to allegations that may lead to adverse findings against them.

Importantly though, the alleged perpetrator has no right to confront or cross-examine the complainant in person. This is not the purpose of a workplace investigation into sexual harassment. Cross-examination is for a court room under the supervision of a judge.

An investigator should make findings whether the allegations are substantiated based on a balance of probabilities, which means asking is it more likely than not that the sexual harassment occurred. The legal definition of sexual harassment is complex and technical. It is even more challenging when the alleged perpetrator refused to participate, when allegations are denied and there is no common ground. The investigator may have to decide whether the complainant’s or alleged perpetrator’s evidence is truthful.

After the investigator delivers the findings, it is then up to the employer to decide what happens next. If the allegations are not substantiated, the outcome may be no further action by the employer. Where does this leave the employees who may be expected to continue to work together? It is not uncommon for the victims to leave the particular workplace. In other cases, a perpetrator may be sanctioned or terminated. Ironically, an investigation may lead to litigation – a complaint to the AHRC or in the case of a sacked worker, challenging the dismissal in the Fair Work Commission. The stakes are high for all involved, including employers.

This is why procedural fairness in the process of collecting and evaluating evidence and applying the correct legal tests is important to the integrity of investigations; but most importantly, the rights and reputations of those making and responding to allegations of sexual harassment.

  • Kate Eastman SC is a barrister at New Chambers.