I just learned a lesson in being timely because I found Peter's 3 question thread had been closed. However, I've been mulling over this topic for a while, and finally got around to writing down my thoughts.

Q3 Steph Dyhrberg says H&S practitioners need to acknowledge sexual harassment and bullying as legitimate workplace hazards to be dealt with. Do you agree? Why, or why not?

Wow! This question really challenged me. As an HR and HSE consultant, I often joke about how I’ve got a pair of high heels and steel caps under my desk, as I never know if I am going to be heading towards a Boardroom or smoko shack.

Yes, I absolutely believe that sexual harassment and bullying is a legitimate workplace hazard that can result in illnesses with a legitimate medical diagnosis. There is a need to investigate the ‘hazard identified’ and work out how to manage the ‘hazard’ (person in question) and even consider involving the Police. This is all clearly defined under HSWA 2015 and the Crimes Act 1961.

However, such behaviour would also result in the need for a disciplinary procedure that would hopefully be defined under in Employment Agreements, Employee Handbooks and a general Code of Conduct. The challenge is that the ERA 2000 which has been shaped by Contract/Common Law and the desire to ‘act in good faith’ which is different to HSE’s criminally based statues.

To me the real challenge when you get a clash of methodologies (HSE, HR & Employment Law), you can find that:
1. By conducting an HSE / ICAM investigation an organisation can commit a procedural ‘own goal’ and end up facing a Personal Grievance or claim for Unjustifiable Dismissal.
2. By conducting an HR disciplinary procedure, the focus can on apportioning blame and not resolving systemic issues that allowed the situation to occur in the first place.
3. Any formal investigation (regardless of the methodology) can traumatise the target and divide the company culture.

So, what’s the answer? Apart from the usual “every situation is different and needs to be dealt with on a case by case basis,’ my preferred way of dealing with it is:

1. Be proactive: “That’s not how we do things around here” type training and individual coaching.
2. Have Bullying/Sexual harassment definitions and reference to company policies in your Critical Risk Register, Employment Agreements, Employee handbook and Code of Conduct. This needs to include a defined process for making a complaint and let everyone know about it.
3. Always take a complaint of bullying/harassment seriously and make sure that the target is made aware of all their options for dealing with the problem (both formal and informal processes).
4. Always offer EAP/Workplace Support to all parties involved.
5. Keep accurate records (even if the response is informal).
6. If you are going to conduct a formal investigation it is better to get a suitably qualified external investigator. For businesses that I work closely with I have preferred external investigators (usually lawyers) and I focus on making sure that everyone has a chance to be heard with dignity and supported throughout the process.

I’m really interested to see what everyone else has to say and how you go about dealing with the issue.