$30,000 penalty for failing to independently investigate a sexual harassment complaint

In a warning for employers to ensure sexual harassment complaints are taken seriously and investigated appropriately, the South Australian Employment Tribunal has awarded $30,000 in general damages against Adelaide supermarket, Pasadena Foodland for failing to properly and externally investigate a sexual harassment complaint against its head chef.

The Facts – Allegations thought to be “nothing of concern”

An employee made a formal complaint alleging that three instances of sexual harassment, including inappropriate touching, occurred on the same day. Following this, Pasadena Foodland Manager, Mr Kunzel and Human Resources Manager, Mr Piantadosi watched CCTV footage from the day and concluded there was “nothing of concern”. The CCTV footage was automatically destroyed two weeks later.

Two months after the incidents, a duty manager became aware of further details surrounding the complaint and recommended Mr Piantadosi escalate the matter for formal investigation.

Pasadena Foodland held a meeting with the complainant to discuss the allegations and called in Mr Piantadosi and Mr Kunzel to describe what they saw on the CCTV footage before interviewing other workers.

A report detailing the findings was prepared by General Manager, Mr Mabarrack providing certain recommendations and commitments of the employee. This report was provided to the employee at a further meeting where they were advised their allegations would not be pursued by Pasadena Foodland and no further action would be taken against the chef.

The Tribunal’s Decision – A “self-serving” investigation report:

In awarding the $30,000 in general damages, Deputy President Judge Leone Farrell found that the employee’s complaint was not taken seriously. The investigation process undertaken months after the incidents was described as “too little too late”. Judge Farrell criticised Pasadena Foodland for not obtaining a statement from the employee and described the investigation report prepared by Mr Mabarrack as a “self-serving document”.

Judge Farrell was satisfied that the chef sexually harassed the employee and that Pasadena Foodland was liable. Judge Farrell also found that Pasadena Foodland did not take reasonable steps to implement and enforce its sexual harassment policy or conduct a “prompt and proper” investigation.

Judge Farrell stated that this case “highlights the need to ensure that employers conduct independent investigations and maintain proper records when complaints are made”. The Tribunal criticised Pasadena Foodland for adopting a “very flawed” approach to investigating the complaint by allowing the managers into the meeting with the employee instead of obtaining their statements separately.

Following the Tribunal’s decision, Foodland Pasadena issued a statement saying it had stood down the chef and will consider its response, including whether to appeal the decision in the Supreme Court.

The Takeaway for Employers – Thorough and independent investigations:

The Tribunal’s decision demonstrates the need for employers to take allegations seriously (particularly sexual harassment complaints) and to conduct thorough investigations – ideally by engaging an independent and impartial investigator.

Employers must also ensure all statements, written records and CCTV footage are appropriately compiled and maintained.

If you have any queries about responding to employee complaints and conducting thorough investigations, please do not hesitate to contact Nick Stevens, Jane Murray.

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