E tū Union falters in conducting a fair disciplinary investigation into sexual harassment claim and at its peril determines not to investigate sexual harassment claims.
The E tū union has been found wanting in a situation where it would be expected it would have challenged an employer for conducting itself unfairly.
The Authority has determined that E tū did not act fairly in not investigating a claim of sexual harassment by an employer against a union organiser when he was investigating the employer for migrant exploitation.
At the heart of the matter were WhatsApp messages produced by the employer to support a sexual harassment claim against Mr Singh.
Mr Singh was employed by E tū as a union organiser. He was also a prominent person in the migrant worker's rights movement. In his migrant worker role, he was asked to assist in a case of alleged exploitation of a migrant worker.
There had apparently been a “string” of exploitation cases involving this employer.
Mr Singh was, because of his notoriety in migrant worker claims, vulnerable to the potential for retaliatory claims which the union arguably ought to have been cognisant of.
Attempts to resolve the matters were frustrated by the employer. There was a delay in the sexual harassment claim being made which the union also failed to consider.
To support her claim of sexual harassment the employer produced WhatsApp messages purporting to be sent by Mr Singh indicating he sought sexual favours from her in exchange for resolution of the outstanding matters.
Mr Singh denied the authenticity and demonstrated the inconsistencies of the WhatsApp communications. According to the Authority, Mr Singh gave a “credible explanation” to support his denial which indicated the messages were “in fact not sent by him”.
The union chose not to follow through on his explanations because it couldn’t decide whether he was telling the truth and whether the communications were a fabrication. To avoid investigation, the union decided to not pursue the sexual harassment allegation. The Authority found it had not acted fairly in this respect; it had an obligation to Mr Singh to investigate the sexual harassment as well as the ancillary matters.
Mr Singh was dismissed not for the sexual harassment but for other ancillary reasons associated with his involvement with the employer, such as compromising his role as a union organiser with that of other potentially conflicting roles.
However, the Authority found the union was not entitled in the interests of fairness to ignore the sexual harassment claim without investigation, as the dismissal - although for other reasons, gave the perception Singh had been dismissed for the sexual harassment.
Further, Mr Singh had been suspended due to “risk” for the union arising from the media attention associated with the sexual harassment claim.
The Authority in finding the dismissal to be unjustifiable was critical of the union in not investigating.
The Authority commented on the “unfortunate situation” where the allegation had been put in the public domain creating a perception that Mr Singh was dismissed for sexual harassment despite this not being the case.
The issues raised by the WhatsApp messages were, the Authority said, serious and significant and required in Mr Singh’s interests to be investigated.
What this case reinforces, is that the process for dismissal is as important as the reasons for the dismissal.
An employer does not have the right to cherry-pick that which it wishes to investigate. It has an overriding obligation of fairness. It is never just about what the employer thinks is relevant to the enquiry. Relevancy is often more what the employee wishes to have investigated.
In this case, Mr Singh didn’t have adequate opportunity to respond to all issues raised about his conduct and to have his issues of credibility explored. The investigation, the Authority suggested, was woefully inadequate and unfair in that respect. It failed to give Mr Singh an opportunity to respond to serious allegations of sexual harassment, and in dismissing him without that opportunity, leaving a public impression that he had been dismissed for the more serious matter of sexual harassment.
So, what is the takeaway from this case?
All too often employers choose what to investigate and what not. In the interests of fairness, there is no prerogative for an employer to circumscribe an investigation or determine what is relevant. Often what is omitted is just as important as what has been included. Fair process requires all allegations to be fully investigated.
The Authority was right to be critical of E tū in deciding not to investigate further, simply because it couldn’t decide; such was not the actions of a fair and reasonable employer, and it is rather surprising the union didn’t appreciate that a “couldn’t decide” position gave rise to a positive obligation to investigate.
It had an obligation to investigate all matters in a disciplinary process. In the interests of fairness, the union was required to give Mr Singh an opportunity to clear himself of the serious sexual harassment allegation and to demonstrate plausibility and credibility in relation to other matters.
The law is clear. All the circumstances are relevant, not just those the employer chooses to consider.
Investigations are the art of balancing competing interests and protecting all rights. Fairness is all-encompassing. Employers ought to seek advice on how to craft the scope of the investigation to run a fair process, which doesn’t subsume their employees’ rights, to have a fair hearing and not be unjustly impugned as a sexual harasser as in this case. It is a positive obligation under the consideration of fairness and justice.
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E tū has challenged the ERA decision and the matter is in the employment court.