No means no

While the media lapped up the salacious details regarding the resignation of David Jones' CEO Mark McInnes for sexual misconduct, the incident shone a much needed spotlight on harassment in the workplace and opened up countless talking points around office water coolers. For example, if McInnes had been extorting money out of female employees in return for promotion and other advantages, he probably wouldn't have just been sacked - he'd be in jail. However, because of McInnes' reputation as a 'ladies man' playing the field, it was just accepted as a normal part of corporate life.

Secondly, it painted a bleak view of the potential corporate culture at David Jones, especially if the old maxim 'the fish rots from the head down' holds true. How do patterns of behaviour contribute to corporate culture? How do organisations track counterproductive behaviour? If a person is identified as being one who commits inappropriate behaviour, will they continue to be a risk to the organisation if they are promoted? If so, what can be done to get them to change their behaviour, or leave the organisation?

Jo Kamira, principal, WISE Workplace Investigations, agrees that such indiscretions at the top level are often overlooked and accepted - primarily due to fear. "There can be a power imbalance and it takes a very brave person to raise issues of inappropriate behaviour by a member of a senior executive," she says. "Inappropriate behaviour is also often excused because the perpetrator is someone who is seen to 'get the job done'. Many employees fear making a formal complaint about sexual harassment against senior executives, as the issue could prove a career killer for them."

Bernie Althofer, managing director, EGL I Assessments, notes that for many who have been subjected to sexual harassment or even bullying, once the resolution options are explained to them, or they find out what the costs are (personal and financial) for taking formal action, the matter just dies. Others then perceive that the alleged offender managed to get off the hook, and the behaviour continues, ad infinitum.

"There is an imbalance in many organisations where the CEO generally has considerably more power than those below him/her," Althofer notes. "Decisions by individuals to report any form of inappropriate or counterproductive behaviour are generally not taken lightly, but the culture of an organisation plays a considerable part in deciding what is tolerated, and unfortunately this can lead to a culture of tolerance." 

Althofer adds that individuals in any form of executive position must understand that their behaviours in both the public and private life are under constant scrutiny. If their behaviours do not align with the values espoused by the organisation, any transgression will be reported accordingly.

"It's also important that the Board know that, from time to time, they should ask for data about the incidence of inappropriate workplace behaviours, and take action if they have concerns about the actions of the CEO or other members of the executive," he says.

Drawing the line
While senior executives clearly need to model appropriate behaviour and be seen to 'walk the talk' it can put HR in a difficult position. Where is the line drawn about office liaisons that are not exactly harassment but may still involve exploitation?

"Exploitation is a two way street," says Kamira. "Is the manager exploiting their position for a liaison with a junior or is the junior exploiting the relationship for a benefit with the manager? Workplace relationships cannot be stopped, but exploitation can be depending on the company policies."

Althofer says that office liaisons may have an impact on the work environment - for example, distractions, gossip and related issues, especially given that human beings are relatively social in their work approach. Organisations therefore need to have clearly defined policies about sexual harassment and bullying so that individuals understand what does and what does not fit into this framework. 

"Unfortunately 'office liaisons' can go drastically wrong as happened with Brodie Panlock and Café Vamp in Victoria*. Each situation has to be judged on its merits, and line managers play a crucial role in monitoring the 'mood' of the workplace. They should step in where conflict starts to occur and take decisive action," he says.

Education, training, strong policies and leadership can also help. Kamira says the last is particularly important. "An organisation is only as good as its leaders and their behaviour. Employers must also make sure their policies and guidelines relating to inappropriate behaviour are clearly written and accessible to all staff and managers."

Yet whilst the development and implementation of policies and procedures in relation to sexual harassment and workplace bullying can be the first step, a long-term proactive and preventive view should be taken. This starts with the recruitment, selection and placement process and flows through to performance management processes. 

The Board, CEO and executive must lead by example and take decisive action when allegations are made. "[They should] investigate immediately, and fall on their own sword if required," says Althofer.

In addition, Althofer suggests the following:

• Ensure there is unswerving commitment from the top about creating an understanding and acceptance of an organisational culture that does not condone, accept or tolerate any form of inappropriate workplace behaviours
• Develop systems and processes that communicate Court, Commission or Tribunal decisions so all employees understand what is and what is not acceptable. Line managers and supervisors play a pivotal role in ensuring that leadership is carried on throughout the organisation.
• Provide regular ongoing L&D for all levels - including the Board, CEO and executives
• Undertake regular audits and reviews of the policies by testing employee knowledge
• Ensure that the Board includes an agenda item to address inappropriate workplace behaviours, just as they would do for health and safety

As a final word of cautionary advice, Althofer suggests that Boards, CEOs and executive ensure that they have an excellent working knowledge of the emerging Work Health and Safety Act, and in particular those sections that relate to who is an officer, the meaning of a workplace and what is a workplace.

"It's important for everyone to understand that people make up organisations, and whilst accountability is a trump card, individuals have responsibilities and this includes treating others with respect and dignity. It's not just the responsibility of HR to prevent all forms of counterproductive behaviour such as sexual harassment or bullying/harassment, but the responsibility of everybody. No does mean no," he says.

*Four men responsible for the relentless bullying of teenage waitress Brodie Panlock - who later killed herself - were convicted and fined a total of $115,000. The four defendants pleaded guilty in the Melbourne Magistrates Court to failing to take reasonable care for the health and safety of employees.

Workplace investigations
HR practitioners and line managers are regularly being called upon to conduct investigations into complaints by staff members, corresponding with the increasing number of stress related workers compensation claims that relate to inappropriate workplace behaviours.

Complaints are frequently complex and consume large quantities of time and management effort.

Courts and Tribunals are frequently criticising organisations that undertake poorly executed investigations. In a recent example, an employee who was sacked on harassment claims has been reinstated and paid lost earnings based on the decision made by the Australian Industrial Relations Commission (AIRC) that the company did not follow appropriate procedures for investigating and dealing with the harassment claim.

The AIRC found a lack of credibility in relation to the allegations, and inconsistent and inaccurate evidence offered in the written account made by the company's HR manager. By contrast however, the supervisor's evidence was considered clear and consistent.

The AIRC stated that the company had failed to initiate a proper investigation into both complaints and instead accepted the accusations at face value. The supervisor was denied natural justice in that he was not provided with full details of the allegations against him nor was he afforded an appropriate opportunity to respond to the allegations.

The AIRC said there were "significant deficiencies" in the company's investigation and therefore the company had no reasonable basis on which to make their decision to terminate the supervisor's employment.

What then, are some key do's and don'ts of an investigation? The following list contains a few of the matters that may impact on investigation outcomes.

Do

1. Make sure that you have clear 'terms of reference' defining the scope of the investigation, and responsibilities of the investigator
2. Ask, am I the right person to be undertaking this investigation? Do I have the objectivity, time and skill?
3. Start any investigation with an 'empty head' - too frequently parties to a workplace incident will have biases
4. Ensure you follow the principles of natural justice, in particular towards the rights of the person being accused of inappropriate behaviour
5. Remember that the process can be very stressful and time consuming; a poorly conducted investigation can damage workplace relationships for many years to come. Haste can result in an unjust outcome. An investigation is often an educative journey for the parties who will need time to reflect upon their actions
6. Make a finding in relation to each and every element of the allegation(s). No-one should be left with a cloud of doubt hanging over them
7. Record in your report not only the allegation but the arguments and/or supporting evidence given by both the complainant and the respondent
8. Ensure there is a clear and logical connection between the evidence, your findings and any conclusions you might make. Demonstrate in your report that you have properly considered all of the material evidence
9. Emphasise to all parties the need for confidentiality throughout the process, ensuring secure storage of any documentation

Don't

1. Undermine your independence, resist pressure to make the finding you think is wanted by the organisation
2. Put too much weight on hearsay
3. Give undertakings to the parties that you will maintain confidentiality in relation to their evidence/comments. You may not be able to keep such undertakings
4. Make comments that might be interpreted by the parties as bias
5. Accept what you are told without testing against evidence
6. Try to deal with a matter rationally without acknowledging and dealing with emotional responses from the parties being interviewed
7. Indicate your impressions prior to completing the investigation. You may actually change your initial impressions during the course of the investigation and upon the discovery of further evidence
8. Don't pro-offer advice that has not been asked for or make a finding that a person has acted unlawfully. It is not the role of the investigator to determine if a person has acted unlawfully. You might find that their actions or behaviour "might be capable of being characterised as unlawful by a relevant court or tribunal."

An investigation process can have long lasting impact, so ensure due care is taken and investigators are equipped with the skills and resources to focus on achieving the best possible outcome.

About the boxout author
John Boardman is director of workplace relations, iHR Australia