A GUY'S VIEW

Sexual harassment in the workplace 2

Last week I took a look at the Employment Sexual Harassment (Prevention) Act, 2017, a bill which is currently being debated in Parliament. This week’s discussion will delve a little further into that pending legislation.

The bill seeks to ensure fairness in promotion and other beneficial opportunities. Section 5 of the bill provides that no employer or supervisor should suggest to an employee that their prospects in the workplace would be improved by virtue of their acceptance of sexual advances. We hear stories of persons sleeping their way to the top. This provision is an effort to ensure that there are no advantages to be gained through this activity, beyond the pleasure.

Where another employee believes that a colleague is using the bed as the highway to progress, an employee so aggrieved may make a complaint to the Chief Labour Officer. Just imagine such a scenario. Employee “A” makes a complaint to the Chief Labour Officer that employee “B” has been promoted because he is sleeping with the boss. It would be interesting to see what evidence is presented to support this allegation.

There is a requirement that an offended employee make their complaint within three months of the relevant incident. This is a reasonable time period. It gives the complainant the opportunity to reflect on the words or actions that made him or her uncomfortable and unhurriedly initiate the complaint process. It is also not so long that a respondent would be unable to connect the complaint to her actions.

Section 8 sets out the procedure to be followed by the employer once a complaint has been made: “Where a complaint is lodged with the employer under section 7, the employer shall; in the case where the complaint is made against the employee, inform him in writing of the complaint and its details; in the case where the complaint is made against the client, take such action as he considers appropriate in the circumstances to bring the matter to the attention of the client; and investigate the complaint.”

A few important observations emerge here. Where an employee complains against another employee, the employer must give the person against whom the complaint was made that information in writing. It is not sufficient to inform that a complaint was received. The details of the complaint must be provided.

A person cannot be expected to properly defend herself against an allegation the details of which are unknown. It allows the respondent to address each item of the complaint seriatim and in careful detail. Should this opportunity be declined, the fall out would lie squarely at the feet of the respondent.

Where the complaint is made against a client, rather than an employee, the client is equally entitled to have the details of the complaint brought to their attention. Although the provision does not mention the need for writing with respect to a client, in the interest of a proper investigation, writing should also be used, if at all possible. This would remove any later dispute over what was communicated, and when.

Regardless of who is accused, the employer must conduct an investigation. It is not sufficient to receive the complaint and sit on it without taking action. It may also be a failure on the part of the employer if the complaint is just passed to the Chief Labour Officer without any investigatory input from the employer.

The employer’s investigation must produce a result, one way of the other. Where the complaint has been established against an employee, disciplinary action must be taken. The disciplinary action must be appropriate, hence one would expect that the punishment must be proportionate and suitable to the offence. This demands, therefore, that the employer establish a disciplinary policy ahead of these events and that a range of punishments are provided for in the entity’s policy. Where the guilty party is a client, there may be no recourse to discipline, but the employer is obligated nonetheless to deal with the situation as is appropriate.

If the investigation reveals that there was no sexual harassment, the parties should be so informed in writing. Informing the parties allows for an appeal if one is dissatisfied with the original outcome.

The services of the Chief Labour Officer may be employed where one is aggrieved with the outcome of the employer’s investigation or where, the findings of the investigation notwithstanding, the harassment continues after the original complaint. In such circumstances, the aggrieved person has another three months
to make their new complaint.

Where the person complained against is the employer or chief executive officer of the business or entity, the original complaint would be to the Chief Labour Officer. And if the Chief Labour Officer becomes the subject of complaint, the employment Rights Tribunal would receive the complaint directly from the person claiming to be harassed.
Once a complaint is received by the Chief Labour Officer, he is obligated to give notice of it to the respondent, carry out his own investigation and, where necessary, seek a mediation solution to the issue.

The Chief Labour Officer shall not investigate a matter if the complainant decides not to have it investigated or to have the investigation discontinued, and he may decline to investigate a report where the complaint is trivial, frivolous or vexatious or the complaint is not brought in good faith. He may also not investigate where the complaint was out of time. An aggrieved complainant may lodge a complaint with the Tribunal within three months of receiving notice of the Chief Labour Officer’s decision.

Importantly, the Chief Labour Officer has the authority to require any person who he believes has information that might assist with an investigation to furnish him with that information. This reaches beyond the complainant and the respondent. And further, the Tribunal has the power to order the complainant, the respondent or any person who may be able to provide information on the complaint to attend its inquiry for the purpose of resolving the matter.

The bill contains important inputs that may help to change attitudes towards workplace interaction. How it works in practice is still to be seen. How it is amended during parliamentary debate may also be instructive.

Barbados Advocate

Mailing Address:
Advocate Publishers (2000) Inc
Fontabelle, St. Michael, Barbados

Phone: (246) 467-2000
Fax: (246) 434-2020 / (246) 434-1000