External Workplace Investigations: worth every cent!

• Supermarket ordered to pay damages for failing to properly investigate a sexual harassment complaint

• A recent decision by the SA Employment Tribunal condemns informality of investigation as well as the poorly implemented policies in a wake-up call to employers to invest in external assistance

What happened?

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 required. 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 was in spite of a 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 that economic loss had already been compensated for through a worker’s compensation claim.

Pasadena Foodland did try 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 the policies, nor 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 relate 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

• 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 takeout for employers: invest in investigations and policy & procedure reviews!

1. Investing in a proper investigation (as well as proactive policies and training) saves more in the long run – including an organisation’s reputation
2. Company policies and procedures must be effectively communicated, implemented and enforced. It’s not good enough to simply have a policy that prohibits bullying and harassment.

Need specialist help?  

Workplace Wizards can assist with creating a workplace that provides equal opportunities and is free from harassment, discrimination and bullying. Our experts review and design policies and procedures, conduct investigations into complaints, advise on diversity management, design and deliver training, and conduct Workplace Culture Audits.

Workplace Wizards also prepare company policies and Codes of Conduct to protect your business from risk. contact us at Workplace Wizards support@workplacewizards.com.au or 03 9087 6949