Unless new guidelines are issued to the Industrial Disputes Tribunal (IDT), employers are not likely to dismiss workers for sexual harassment, even after the Sexual Harassment Act becomes law.
The Sexual Harassment (Protection and Prevention) Bill (the “Bill”), which has been passed in the lower house and now awaits passage in the Senate, might become the first new major labour law in decades. It requires employers to “make every reasonable effort to ensure that the workers employed [to them] are not sexually harassed and to expeditiously commence investigations into reports of sexual harassment.” The employer, whether a large corporation or a household, is required to take appropriate disciplinary measures against perpetrators of sexual harassment and that “due process shall be exercised”. But there is no clear guide to employers on what constitutes due process in the context of a sexual harassment complaint.
The Labour Relations Code, which was meant to be a guide to employers and employees on due process, has not been revised since it was passed in 1975. It was created largely with unionised workplaces in mind and is notoriously inept at dealing with small businesses and sole traders. The Bill, on the other hand, recognises that sexual harassment can occur anywhere and affect anyone. So, for example, if you hire anyone at all, whether a domestic helper or gardener, you are required to have a written sexual harassment policy statement within 12 months of the Bill becoming law.
Because the Labour Relations Code is not a comprehensive guide, and gives only minimal guidance on due process, the IDT has been forced to create its own set of rules to protect workers from unjustifiable dismissals. Unfortunately, those rules, which are not written anywhere, are often incompatible with the provisions of the Bill, such that employers will likely have to choose which set to follow.
The Bill requires an employer to carry out investigations into reports of sexual harassment, but the IDT says that whoever investigates the allegations may not also conduct the disciplinary hearing, as it would be acting as “judge, jury and executioner”. The IDT has awarded tens of millions of dollars to dismissed employees for that very reason. Similarly, if an employer has witnessed the disciplinary infraction himself, he is ineligible to conduct the hearing as he is supposedly no longer independent. To not run afoul of either regime, the small business or household employer will need to pay for professional assistance to assist in the investigation or the disciplinary hearing involving allegations of sexual harassment. That is an unrealistic expectation.
The Bill also requires businesses to investigate sexual harassment complaints against their employees made by customers, clients and guests. But the IDT requires that all employees facing disciplinary action must be allowed to face their accusers. What business is going to ask their customers to attend a hearing and be cross-examined by their employee’s lawyer? How many clients would subject themselves to that?
As expected from a modern law, the Sexual Harassment Bill is more concerned with justice than process. That is not the case with the IDT. With few exceptions, the IDT has consistently ruled in favour of dismissed workers who they said were guilty, but where the employer made a mistake in the procedure. This includes employees guilty of theft, dishonesty and negligence. There is no reason to think that sexual harassers would be treated any differently.
To avoid paying millions for the unjustifiable dismissal of a sexual harasser, many businesses will take a more conservative approach to sanctioning sexual harassment. Lesser sanctions such as “written warnings”, “final warnings” and “final final warnings” may be preferred because those do not usually result in disputes before the IDT and, in any event, the law does not empower the IDT to order compensation for anything other than a dismissal.
Alternatively, employers may leave victims to fend for themselves. The Bill contemplates a Sexual Harassment Tribunal (“the SHT”) which is given extensive powers to investigate allegations of sexual harassment and hand down sanctions and awards “as may be appropriate”. The SHT can issue a direction to the employer to “take such action…as the Tribunal may direct to ensure that the conduct referred to …ceases”. Presumably, that would include a direction to dismiss the harassing worker. Many small businesses may therefore decline to fire a harasser unless so ordered by the SHT.
This situation is undesirable for at least two reasons. Firstly, sexual harassment is a serious offence and should always be met with an appropriately severe sanction. Secondly, the employer itself faces the threat of sanctions by the SHT for applying an unsatisfactory sanction. With the landscape being as it is, the employer is stuck between a rock and a hard place, and it is the victim of sexual harassment that stands to suffer the real loss.
The Minister of Labour needs to urgently revise the Labour Relations Code before the Sexual Harassment Bill becomes law and finally remove this antiquated approach of preferring form over substance.
Gavin Goffe is a partner at Myers, Fletcher & Gordon and Matthew Royal is an associate attorney-at-law at the firm. Both are members of the firm’s Litigation Department. They may be contacted at www.myersfletcher.com or their e-mail addresses: Gavin.Goffe@mfg.com.jm or Matthew.Royal@mfg.com.jm .
This article is for general information purposes only and does not constitute legal advice.