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03 October 2018
Recent claims against politician Barnaby Joyce show that sometimes an internal investigation into workplace sexual harassment is not the best idea.
When sexual harassment or misconduct claims are made against an individual in an organisation, the natural reflex may be to deal with complaints internally (especially if the person is senior or high profile). However, the benefits of engaging an independent investigator can outweigh the seeming advantage of being able to fully control the matter internally. This is especially true now that #metoo has shone a harsh light on the lack of due diligence on the part of many organisations when dealing with workplace sexual harassment (for further details please see "A guide to handling #metoo in the workplace").
As the National Party has discovered, using internal processes to examine internal issues can seem biased and unfair. With regard to the case of Joyce's alleged sexual harassment of Catherine Marriott, the finding of "unable to make a determination" due to insufficient evidence cast a shadow over the investigation's credibility.
Worse still, such a finding means that none of the parties can move on. The alleged victim cannot get closure and her reputation may be compromised by the uncertainty surrounding the nature of her claims. Meanwhile, the alleged perpetrator, while not found guilty, is also not cleared of the allegations.
Therefore, mistrust and suspicion about Joyce's conduct and the suitability of his continued service will remain. The National Party may also suffer reputational damage, as its lack of findings highlights an inability to manage serious issues and may suggest a culture that unfairly favours its more powerful members.
To avoid doubt and misgivings about an investigation, organisations should consider engaging external assistance, depending on the nature of the claims and those involved. Engaging an external investigator is advantageous to an organisation in:
Professional, experienced, independent and impartial; an external investigator is often best placed to conduct an investigation that reaches conclusive findings (based on the balance of probabilities) and instils participants and observers with trust in the process undertaken by the organisation.
Those involved in an investigation conducted by an external investigator are more likely to feel heard and supported. Organisations can confidently proceed to resolution and redress, if relevant. Perpetrators who are found responsible can, at the very least, apologise for their conduct and make amends, with a view to repairing their reputations without the uncertainty of allegations hanging over their heads.
In another high-profile case, NBC News Management conducted an internal investigation into claims of sexual misconduct by TV personality Matt Lauer. Although the internal investigators found Lauer guilty, they exonerated all other network leaders regarding their alleged knowledge about his conduct.
After the investigation, NBC received an influx of complaints and accusations that it had not investigated the claims thoroughly, because the initial investigation was managed internally. Ultimately, a further investigation was required by NBC's legal advisers, before the findings (and recommendations) were seen as credible.
In contrast, after claims of sexual assault were made against comedian Chris Hardwick by a former partner, his employer – AMC – engaged an external lawyer to conduct an investigation. The investigation was swift and conclusive, allowing AMC to return Hardwick to work and assure the public that it had done everything in its power to ensure the correct outcome.(1)
For further information on this topic please contact Aaron Goonrey at Lander & Rogers' Sydney office by telephone (+61 2 8020 7700) or email (firstname.lastname@example.org). Alternatively, contact Emma Lutwyche at Lander & Rogers' Melbourne office by telephone (+61 3 9269 9000) or email (email@example.com). The Lander & Rogers website can be accessed at www.landers.com.au.
(1) An earlier version of this article was first published in HRM Online on 20 September 2018.
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