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Sexual harassment and lack of procedural fairness

An employee who applied to the Merit Protection Commissioner for review was found by their agency to have sexually harassed a colleague by making sexually explicit comments and behaving in an inappropriate way towards the colleague both at work and at work social functions.

When investigating the case, the agency gathered evidence from witnesses to some of the incidents. This evidence was inconclusive as the witnesses claimed to be unable to recall the details of particular incidents. In this case it was necessary to test the reliability of the evidence of the witnesses because the team in which this behaviour was alleged to have occurred met socially extensively and members of the team had developed close friendships.

The witness evidence also included statements from two senior managers who had not witnessed the alleged misconduct. One of the managers made adverse statements about the employee's character based on general observations, including a statement that the employee was untrustworthy and lecherous. The manager also made statements about the circumstances that led to the complaint which were relevant to the credibility of the complainant.

The agency investigator did not put any witness statements to the employee and relied instead on inconclusive CCTV footage of two incidents.

Although the manager did not witness the behaviour, the manager's evidence was relevant, credible and significant in the deliberations of the decision maker, as it related to both the character of the employee and the complainant. The adverse evidence of the manager, or a reasonable summary of that evidence, was not put to the employee and therefore the Merit Protection Commissioner recommended that the decision be set aside on the basis that the employee was denied procedural fairness.

It can be difficult to investigate and reach conclusions about allegations of sexual harassment because the facts are often highly contested and the evidence of witnesses may be affected by gossip and personal loyalty to one party or another. However, sexual harassment is a serious matter and a finding of misconduct on this basis is significant. For this reason, in many cases it would be prudent for agencies to seek professional advice when investigating and making findings of fact in sexual harassment cases, including from legal advisers, to ensure that the process is procedurally fair, the evidence is properly tested and weighed and the reasoning underpinning the decision is sound.