A fair way of disciplining alleged bullies and predators
“I won’t testify,” she said in the investigation. “I don’t want to face him. I don’t want to have to endure his questions.” This is a common response from a complainant when asked whether they will give evidence against an alleged perpetrator, whether it is sexual harassment, bullying or any other form of harmful behaviour.
Those who are at the receiving end of the allegations are just as fearful. They normally understand the seriousness of the allegations, have a lot to lose (as are commonly senior persons in a position of power), and don’t trust that they will be given a fair hearing because “once accused, always labelled.”
So how does an employer dispense fair processes if they are up against these sentiments?
An employer must institute disciplinary proceedings if an investigation reveals that there is sufficient basis to the case for the alleged perpetrator to answer. This is not a high hurdle, because of the seriousness of harassment allegations and the risk to the employer if they are not seen to be acting against harassment. For example, even if a single witness recounts to an investigator a compelling version of unwanted behaviour at the hands of another employee, this may well be sufficient to warrant a disciplinary enquiry where the versions of the complainant and accused perpetrator are tested.
It is for this reason the disciplinary enquiry needs to be that much more protective of the rights of those involved.
The most common form of a disciplinary enquiry (which is adversarial), includes parties leading their cases through the presentation of documents and witnesses (often through gruelling testimony and cross-examination) and the presiding officer determines the merits of the case on the parties’ respective evidence and submissions. This process is competitive and combative. Harm to the relationships is not limited to between the accused and the accuser. And the gossip from the process seeps into the rest of the organisation.
Harassment cases often involve anxious witnesses who recount very personal and sensitive information, discrimination and power are common themes and the stakes are high both professionally and personally, particularly in cases such as sexual harassment. The adversarial process magnifies these aspects of the enquiry.
It is therefore understandable that both complainants and alleged perpetrators fear these enquiries. And this is why disciplinary processes for harassment cases need to be done differently. Disciplinary processes must protect both complainant and alleged perpetrator, whilst providing a basis for a fair process where the truth prevails.
Tokiso’s deep experience directs that such enquiries into harassment should rather adopt an inquisitorial process. In this approach, the presiding officer leads the enquiry by, after hearing the charges and opening statements of the parties, directing what evidence is required to determine the matter. Their objective is to seek the truth of what transpired through testing and assessing the evidence. The benefit of this approach is:
- The parties can and should be encouraged, to be represented by a shop steward or a fellow employee.
- The presiding officer directs the questions to the witnesses. This includes the complainant/s and the alleged perpetrator/s. This mitigates the fear of facing each other through cross-examination.
- Having the presiding officer direct questions focuses the hearing on the facts of the case and not the emotive nature of the issues.
- Parties will still have access to the evidence requested by the presiding officer, including the oral evidence given.
- The presiding officer can still receive submissions and questions to be put to witnesses from the parties.
- Confidentiality can be better maintained as it need not take place in a formal setting. It could be done more logistically flexibly which also means more expeditiously, particularly now that online hearings have become the norm.
Such an approach meets all the procedural requirements of the Code of Good Practice: Dismissal. Employers must ensure that their policies and procedures in addressing harassment provide for this type of disciplinary enquiry.
What is crucial in this new approach is that the presiding officer is highly skilled and impartial and has the confidence of both parties to conduct the process beyond reproach. Employers will have to accept that they are dispensing control over the way they can present their cases. This may be met with some relief. It is not uncommon for employers not to want to take a side when issues are so charged.
What is also compelling is that this approach does not strain relations as the commonly used adversarial processes do. For this reason, there is so much more scope to find a solution where there is space to do so, but with the direction of a presiding officer that ensures that any consensus is informed by a balanced power dynamic and is just and appropriate in the circumstances.
Tanya Venter 18 May 2022
Tanya Venter has over 25 years of experience resolving disputes.
Tokiso is an independent, accredited agency specialising in dispute resolution and prevention. Speak to us about your harassment cases, or for any other dispute resolution assistance.