Workplace Harassment: Procedure

I have already done two programs before this on protection against harassment of women under the Workplace Act 2010. Today I want to tell you about the entire procedure available to you. Which law deals with workplace harassment? What steps are taken? What are the punishments? Where can these punishments be appealed, and where can that appeal be further contested?

When this Act came into force in 2010, every institution was made bound to formulate an inquiry committee within its organization, and this Act also specified how that committee should be formed: the committee will consist of three members, of whom one member must be female. One member will be from among the senior members of that institution. One member will be a senior employee representing your union, or if there is no union, no CBA (collective bargaining agent), then a senior employee will be a member of this inquiry committee, and this inquiry committee will be formulated by a competent authority within that same institution. And if your complaint is against one of these three members themselves, then that one member, or more than one, against whom the complaint exists, will be removed, and a new member will be brought in. That new member can be from within your organization or from outside it, and if the situation in that institution is such that even three members cannot be found, then you can bring in a member from outside, meaning any competent authority that may be proposed. If a competent authority does not exist in any institution or organization, then within thirty days of this Act coming into force, it is bound to have a competent authority in place.

So that is the formation of your inquiry committee: it will be formed of three members, one member will be a woman, one member will be from senior management, and one member will be a senior employee from among the staff, or a senior employee representing the CBA. CBA is the collective bargaining agent, whatever your particular arrangement is.

Now, if a lady places her complaint before this inquiry committee, the inquiry committee, within three days of receiving the complaint, will call in the accused person against whom that lady is making the allegation. It will inform him of the charge sheet, inform him of the allegations, send him all the details, and after receiving it, the accused must submit his complete response before the inquiry committee within seven days. If he does not appear before the inquiry committee within seven days and does not submit his response, provided it is established that this came to his knowledge and he was properly served, then this Act gives the inquiry committee the authority to proceed ex-parte against him.

When ex-parte proceedings are initiated, the complainant's complaint will be heard, her evidence will be examined, and it will be decided ex-parte whether the complaint and the evidence presented to support it establish the allegation or not. If the allegation is established, he will be punished. If the accused does submit his response, then there will be a full and fair trial, evidence will be recorded, the accused will have the complete right to cross-examine this evidence, and he will not only defend himself but is also entitled to present his own evidence in his defence, he has that right. And one very important thing about this: nothing in it will be public, unlike ordinary court cases where all proceedings are public documents that anyone can apply for and obtain copies of. That is not the case here.

All proceedings and all evidence in this will be kept confidential, it will not be public. Confidential doesn't mean it won't be told to anyone at all, no, those directly concerned with it can access it, but an ordinary person cannot obtain it. Now a question also arises here: will you appear in person, through a lawyer, or through someone else? This Act also clarifies that a senior officer from the same institution can be provided to both the complainant and the accused, to assist you, if you ask for one. It doesn't mean one officer is given to both, each will be given a separate one. Besides this, you also have your own choice, you are also given the authority that if you want a CBA agent, the collective bargaining agent, to represent you, you may choose him, or you may choose a male or female colleague, or if you feel some friend of yours can better represent your interests, he too can appear on your behalf before this inquiry committee, this is written into the Act.

The committee also has a further responsibility, which is to ensure that the environment remains conducive, that no one is pressuring anyone, no one is spreading rumours about anyone, no one is threatening anyone, that everything is happening freely and fairly, in a free atmosphere. This too is the inquiry committee's duty, its responsibility.

Now, once the evidence is recorded, arguments are heard, everything has been placed before the inquiry committee, the inquiry committee cannot simply hear and see the complainant, examine her evidence, hear and see the accused, examine his evidence, examine his defence, examine his proofs, and in a single line state that the complainant is lying or the complainant is truthful, or that the allegation against the accused is proven or not proven. Nothing like that is allowed under this Act for the inquiry committee to do. The inquiry committee is instructed that it must give a detailed decision. It must discuss the evidence, the arguments, the proofs, and in light of that discussion give its decision, and that decision must be detailed. This is done to minimize the chance of anyone approaching or influencing anyone.

Three members will sit and all three will hear the matter, one representing the employee, one representing you, and one lady to protect you. Now, this inquiry committee's job is not only to decide who is truthful and who is lying. After giving its decision, it also has the responsibility to recommend a punishment, or to recommend that no punishment is warranted, and after recommending a punishment, it must send its decision to the competent authority. The competent authority will give its own opinion on these recommendations and, in light of them, may increase the punishment, may decrease the punishment, or may enforce the punishment as recommended.

Now there are two kinds of punishment, a minor punishment and a major punishment. What does the minor punishment include? The first is a censure. Now this censure is given when the allegation against the accused is established to some extent, meaning it is not found that there was an especially aggravated intent behind it, but it is established that he did do something, so he will be given a censure, warning him: be careful, don't do this again, and let off. This is not simply a verbal reprimand, it means he will be given a censure in writing. That censure will become part of his record, part of his ACR (annual confidential report), part of his service record, so that if in future he does something again, this will also be taken into account as part of his past conduct, a sword hanging over him, so to speak, that if you do it again, this earlier record will count against you, and it will be assumed you were already this kind of person and had actually done something last time, and you only got the benefit of insufficient evidence and avoided a bigger punishment.

That's the censure, the reprimand. The second minor punishment is a probationary period placed on him: if you engage in such conduct again within a specified period, which could be three months, six months, or a year, you must improve your performance to a certain level, a level they will set, and your performance must reach that level within that period. If he fails to achieve that performance within that period, the period will be extended. Until he brings his performance up to a satisfactory level, he will not get a free hand, he will not be let off, he will remain under observation. Until he crosses the level they have set, he will not be released from this.

In criminal law we use the term 'probation,' sent on probation, meaning he will remain under observation for a year, that he will not repeat this offence, and if he does not repeat that offence within a year, he will be let go, released. Attendance records and such matters continue during this time. The third minor punishment is withholding of promotion, or delaying promotion for a specified period, say, six months.

Suppose a person is an assistant manager and was due to become a manager; two months later, this case came against him, and a complaint came in. He was given this minor punishment, that, sir, your promotion is withheld for six months. The promotion that was due in two months will now occur after six months plus the remaining two months, meaning after eight months, his promotion will happen. Now the fourth minor punishment is: recovery of compensation payable to the complainant from another source, meaning a small compensation may also be given, which can be deducted from the accused's own salary, or if not from salary, then deducted through some other means and given to the complainant. These are the four minor punishments, four kinds, applied where it is established that he did not commit the offence with the severity described, did not carry out the harassment with the intensity that the complainant described in her complaint, but did do something, and for that reason these minor punishments apply.