When considering principles of procedural fairness and treating individuals without bias or pre-judgement, usually the focus is on the respondent – and rightfully so.
Making sure that the respondent is given a reasonable opportunity to respond to allegations against them, and to be given an opportunity to comment on any relevant evidence which contradicts their own evidence.
But before an investigation even commences, it is also extremely important to ensure that employers are appropriately handling and responding to concerns which employee are bringing to their attention.
Whilst this can be particularly concerning where a workplace culture maybe very hostile to whistleblowers, employers need to keep an open mind, and demonstrate impartiality where employees are informally speaking up about interpersonal and/or unsavoury behaviours.
It is problematic if an employer is downplaying or pre-judging such concerns at the ‘triage stage’, both in terms of whether an investigation occurs at all, or how it maybe later handled.
A Case Study: XVC vs Joanne Baronessa
The case of XVC v Joanne Baronessa (Human Rights) [2018] VCAT 1492 (3 October 2018), is such an example where a lack of fairness and pre-judgment occurred. In this case, the employee, known as XVC (whose name was not identified, due to sensitive information about her health) brought concerns of concerns of alleged workplace misconduct to the attention of Ms Baronessa, a manager at her employer, Marriott Support Services.
XVC had been working for Marriott Support Services at a site where a railway level crossing was being replaced, where employees of Rail Safe Working Solutions also worked.
XVC’s work brought her into contact with a man, referred to as YLH, one of Rail Safe’s staff. YLH was only referred to by his initials has he was not subject to the VCAT proceedings. XVC claimed in the VCAT case which she brought that YLH made comments of a sexual nature and comments about violence either to her or in her presence on several occasions, and that she first reported her concerns to Joanne Baronessa, the Marriott Support Services staff member who dealt with her.
XVC’s claim was for sex discrimination, and that Marriott was vicariously liable for Ms Baronessa’s conduct in responding to the concerns. Some of the comments, below, were clearly covered by sexual harassment provisions.
The VCAT hearing
At the VCAT hearing, XVC claimed that whilst working during the week beginning 3 April 2017, according to XVC’s evidence, YLH made the following comments to her and in her presence:
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- “My wife is Philippino. I prefer Asian women”;
- About an Asian passer-by: “look at that woman, she’s staring at me”;
- “I own a gun and I admire the killer and rapist from Wolf Creek”;
- “I own excavation equipment… it would be easy for me to bury a body in my back yard”; and
- “You are not employed on your merit only employed because of your sex and your disability”.
In the week beginning 10 April 2017, XVC said that YLH said to her, and, in her presence:
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- In reference to a woman wearing a sheer blouse: “I could ride that all the way home”; and
- About another female pedestrian: “Oh yeah, it’s a hard job, it’s a hard job all day long if you get what I mean”.
XVC said that she informed YLH that his comments were inappropriate and offensive. Her evidence was that on 13 April 2017, YLH said to her that he needed to closely shadow the other disability job seekers beside XVC. XVC stated that she was concerned that he was working very close to an attractive 19-year-old Asian co-worker of hers, for whom she felt responsible.
On about 21 April 2017, XVC went to see Ms Baronessa. XVC’s evidence was that she told her “all the sexual remarks [YLH] had made” and the way he was treating her co-worker. Ms Baronessa’s evidence was that while XVC had mentioned YLH making “derogatory comments about women dressed in see-through blouses, or women generally who walked past the site, or across the rail lines, she did not give me the detail of those comments.”
XVC maintained that she had reported the words said by YLH as he referred to women pedestrians. The VCAT member, Bernadette Steele, who heard the matter, did not accept that YLH’s comments could have been reported without such detail.
Ms Baronessa also said that the Applicant did not tell her YLH had said he admired the killer rapist from “Wolf Creek”. Rather, she claimed that XVC had said YLH reminded her of the character from “Wolf Creek”. Ms Baronessa also denied that XVC had mentioned YLH saying he owned excavation equipment and could bury a body in his backyard. She did recall XVC mentioning that YLH had said he had a gun.
The outcome
The VCAT member held that even if XVC omitted some details in her conversation, she was satisfied that XVC had reported YLH making sexual comments about Asian women, hovering over the Marriot co-worker (who was Asian), and making comments properly characterised as “disgusting” (as Ms Baroness recalled) about women in see-through blouses and women who walked past the site.
Whilst it was not disputed that XVC told Ms Baronessa that YLH had been stood down from the site because of XVC’s allegations, this should have indicated to Ms Baronessa that others were treating the allegations seriously. It was also not disputed that XVC also told Ms Baronessa that she was afraid of YLH and that she was being pressured by a number of relevant employer and contractors at the site to make a formal complaint about YLH.
It was interesting that whilst Ms Baronessa never stated that she disbelieved XVC, she did suggest that XVC was “being oversensitive”.
XVC’s evidence, which was preferred, was that Ms Baronessa’s response in their interview included words like:
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- “You are working in a man’s working environment and you need to expect that kind of unwanted attention”; and
- “You look tired maybe you are perceiving it wrong. Maybe you are being oversensitive”.
XVC said that Ms Baronessa offered her no support, did not offer to document the complaint and actively discouraged her from doing so.
Ms Baronessa said that she reminded XVC that she did not have to make a formal statement and could refuse to get involved in “site politics”, that it was “predominantly a working man environment in construction and that there was always going to be unwanted attention to women”. She also remarked that XVC might be oversensitive and affected by the longer than usual hours she had been working.
XVC maintained in cross-examination that Ms Baronessa did not offer her the option of making a formal complaint. XVC said “I asked her five times. And she never consulted anything about making a formal complaint”. There was no evidence that Ms Baronessa referred to any procedure for making a complaint or told XVC how this could be done. Rather, the interview as described by Ms Baronessa herself in an email, which she sent at the time, began with XVC asking how to make a complaint and ended with advice to walk away from “any sort of onsite politics”.
For that reason, VCAT preferred XVC’s evidence that Ms Baronessa discouraged her from complaining formally. VCAT then found that Ms Baronessa treated XVC less favourably because of her sex, and compounded the unfavourable treatment that XVC had received from YLH by discouraging XVC from making any formal complaint about conduct which amounted to sexual harassment, including suggesting that she was oversensitive.
VCAT also found that Ms Baronessa’s remarks, and her employer’s apparent acceptance of them, subjected XVC to detriment – namely they caused her to feel upset, and humiliated.
Lessons for employers when dealing with complaints
What is of particular interest in this case, is that not only were the comments casting doubt on the perceptions of XVC, but furthermore, was making observations about her being “oversensitive”, that is, judging the perspective of the complainant, rather than objectively considering her right to a safe working environment.
This was further reflected in her statement that it was a “man’s working environment and you need to expect that kind of unwanted attention”. Such a response to an individual wishing to complain, and seek to commence a formal process to resolve such concerns, sends a message of ‘shooting the messenger’. It also might suggest, to a complainant who hears such statements, that any investigation that were to finally take place, may not lead to any significant disciplinary action against the respondent concerned, or change in workplace culture.
There is of course a place for triaging concerns prior to an investigation commencing, but clearly the person triaging, whether an HR representative or supervisor, must remain at arms’ length, and not attempt to shut down concerns that, on their face, if proven, would be serious concerns.
