In May 2011 Jennifer commenced employment with Reality Bytes Pty Ltd and worked as a sales agent in a call centre with a male manager. In December 2011 she was promoted to the claims department.
Early in 2012 a male colleague (who Jennifer had sat beside in the call centre) made a complaint about harassment and intimidation by the call centre manager. Jennifer was asked by her colleague to come forward and provide supporting information. Jennifer also lodged a formal complaint against the same call centre manager citing harassment and inappropriate behaviour.
You work in the human resources division within Reality Bytes. You decide that these complaints need to be investigated. During the investigation a number of staff, including all of the persons Jennifer suggested could support her allegations, were interviewed. Also, the emails of several staff were searched for evidence of sexual harassment. The search found emails of several staff, including Jennifer, which attached pornographic photographs. (The company has an Electronic Use and Information Security policy which stated: “Employees must not download, retrieve or send sexually explicit, harassing, racist or otherwise discriminatory or illegal material from the Internet or email at any time. The behaviour is considered to be serious misconduct and may result in the instant dismissal of the employee(s) involved.”)
Also discovered, was an email from Jennifer to the other complainant which appeared to indicate that she had some form of personal relationship with him. Further discovered, was an email from Jennifer to the call centre manager which appeared to express appreciation for his constant flirting.
When Jennifer was questioned she denied any personal relationship with the other complainant beyond a normal working relationship. Further Jennifer stated that she had forwarded the pornographic email to her manager (at his request) and a female colleague (who had asked why she looked so shocked). Jennifer did not reveal that she had also sent the pornographic email to two members of her family, a female person who did not work for Reality Bytes and a further work colleague.
You have come to the conclusion that her complaint cannot be substantiated.
One of the employees you interviewed now brings to your attention a blog that Jennifer recently wrote on a social-networking webpage. The blog can be accessed by a Google search with the words ‘Jen’ and ‘corruption’. The following wording was on a page alongside a photograph of Jennifer and her name:
“Friday, June 22, 2012
I am sitting here … trying to figure out where I went wrong. I believe that you should always defend the truth, and find the courage to stand up for what is right. There is a place that shall remain unnamed that I thought was based on the same principles.
I have just been thru an investigation that in the end, advanced corruption. The investigation sought to ensure that evidence was tampered with, was controlled and was biased. It was set to make the victim the perpetrator and that any accusation against the real perpetrator, was ignored.
This man was sexually advancing himself on his colleagues. When there were a couple of people that were courageous enough to come forward their statements were dismissed because they were deemed as friends.
Where is the concern of the Senior Management that is meant to be protecting the workers from harassment, intimidation, bullying and sexual advances that were UNWANTED, UNINVITED AND UNSOLICITED?
At the end of the investigation, I was told that it was all unsubstantiated. That he has witnesses and people within the workplace that said I instigated it all. I wanted it. Not one signed statement on his behalf. But two signed statements on my behalf, one from the employee that sat next to me every day for 5 months. He was conveniently sacked the day they were meant to deliver their results and because he was sacked his statement was not credible.
Not once in their entire investigation did they stand down or suspend the Perpetrator so that it could be a fair and equitable investigation. Instead they sacked the other person that made a complaint of harassment and bullying against him, and told me to take as much time off and that it didn’t affect my holiday or sick pay. They turned around my statement, and instead hunted me.
You write a letter to Jennifer requesting her to remove the blog and to cease publishing it (and any other material that has the real potential to damage the reputation of the Company) in the public arena. Jennifer replies that she intended it to be only available to ‘friends’ and that the blog was considered the gentlest and safest way to attempt to bring other aggrieved colleagues forward who have otherwise been too scared about losing their jobs to come forward. Jennifer has not removed it.
You need to decide what the best course of action for Reality Bytes to take, within the law, in dealing with Jennifer and then you are to ‘run it past a lawyer’. Write a letter to a lawyer practising in a suitable area of law along the following lines:
- explain the fact situation (the legally relevant facts);
- explain what Reality Bytes wants to do and how you think Reality Bytes is entitled to act, within the law (ie, the course of action you have worked out is the best one for Reality Bytes); and
- ask the lawyer for advice about the legality of your plans and about any other legal concerns you have arising from these facts.