The positive duty on organisations and businesses to take ‘reasonable and proportionate measures’ to eliminate sexual harassment will become enforceable by the Australian Human Rights Commission from 12 December 2023.
The recent publication of Commission Guidelines on the positive duty has many people questioning how this duty might alter the conduct of workplace investigations into sexual harassment concerns.
In short, provided the workplace investigation is conducted in a procedurally fair manner, the positive duty does not require any material changes to what is currently considered a best-practice, procedurally fair investigation process.
The positive duty is focused on preventing sexual harassment, so the Guidelines aim to avoid conduct that would require investigation in the first place. But humans being humans, misconduct will likely still sometimes occur, and the Guidelines highlight some particular areas of focus relevant to workplace investigations. All of these considerations are likely to be familiar to seasoned investigators.
Here are three key ways that the positive duty is relevant to the conduct of workplace investigations:
1. Adopting a person-centred and trauma-informed approach.
The Guidelines set out four Guiding Principles to help inform decisions about how to meet the positive duty. One is to adopt a person-centred and trauma-informed approach in workplace systems, policies and practices. This includes workplace investigations. Adopting a person-centred and trauma-informed approach when conducting sexual harassment investigations has long been considered best practice.
In recent years, trauma-informed approaches have been increasingly acknowledged and adopted in workplace investigations as important to supporting and protecting investigation participants and getting the most accurate information. A trauma-informed interviewing approach involves recognising how trauma affects people (including their ability to recall information) and taking steps to avoid causing further harm.
Being person-centred is about tailoring systems and processes (as far as possible) to accommodate the needs of the individuals involved. The Guidelines describe this as ‘prioritising someone’s needs, values and preferences – listening to them and recognising and respecting their ability to make choices for themselves.’
The challenge for investigators in applying these approaches has always been to balance the needs of the various participants involved in the investigation with the need for procedural fairness, which includes remaining impartial and not favouring one party over another (for example, providing equal support for both the complainant and respondent).
2. Responding appropriately to reports of sexual harassment
The Guidelines outline seven Standards the Commission expects organisations and businesses to meet to comply with the positive duty. Three of these standards have direct relevance to workplace investigations as a form of response to reports of relevant unlawful conduct:
Standard 02: Culture
This standard requires an organisation or business to foster a culture that empowers workers to report relevant unlawful conduct. Having a well-developed and well-known complaint mechanism and demonstrating that reports will be taken seriously and, where necessary, investigated fairly and impartially is pivotal to encouraging workers to come forward when they witness or experience unlawful or inappropriate conduct.
Conducting procedurally fair workplace investigations and acting reasonably on the findings is fundamental to developing that culture.
Standard 05: Support
This standard requires an organisation or business to ensure appropriate support is available to workers who experience or witness relevant unlawful conduct. Supporting participants in a workplace investigation has long been a necessary part of complying with the overarching duty to ensure the health and safety of workers. The positive duty may provide a prompt to revisit those support measures and improve them where possible.
Standard 06: Reporting and response
This is the standard that most directly relates to conducting workplace investigations. It requires an organisation or business to ensure that appropriate options for reporting and responding to relevant unlawful conduct are provided and regularly communicated.
A workplace investigation will sometimes (but not always) be the appropriate response to reports of relevant unlawful conduct. Where an investigation is required, the standard reinforces the need to investigate in a procedurally fair and timely manner.
3. Collecting data to understand unlawful conduct
The third key way the positive duty is relevant to workplace investigations is the collection of data from the investigation to understand the nature and extent of the relevant unlawful conduct.
Standard 07: Monitoring, evaluation and transparency
This standard requires an organisation or business to collect appropriate data about the relevant workplace conduct and to use the data to assess and improve the work culture.
Workplace investigations can produce a lot of valuable information about behaviours and culture within an organisation. This standard highlights that workplace investigations may be potential sources of data for collection provided that it is done in an appropriately confidential way after the conclusion of the investigation so as not to undermine the procedural fairness of the process.
This standard prompts investigators – or those who receive investigation reports – to consider what information from the investigation may be relevant data for collection.
The positive duty is focused on preventative measures. Confidential and procedurally fair workplace investigations will continue to be an essential part of an organisation’s processes to respond to allegations of sexual harassment when they arise. The positive duty reinforces what is already considered to be a best-practice, procedurally fair investigation process.
