When an employee lodges a bullying or sexual harassment
complaint against a colleague, employers are faced with complex
intersecting obligations and a need to act.
A workplace investigation will often be commissioned. The
"accused" is usually entitled to a chance to respond.
Employers will try to not prejudge the complaint. The employer must
also ensure, so far as is reasonably practicable, a safe workplace
for all while the investigation takes place. Work must continue. A
risk assessment is undertaken and colleagues may be separated.
A recent decision of the NSW Civil and Administrative Tribunal
in James v Department of Justice, Corrective Services NSW
[2017] NSWCATAD 238 considered the difficult process of managing
such an investigation and how steps, apparently taken in the
interest of safety and investigation integrity, were nevertheless
found to be victimisation under the Anti-Discrimination Act
1977 (NSW).
