The inclusion of sexual harassment in Australian federal and state legislation provides women and men with a process for redressing harm experienced in the public sphere, particularly the workplace. Nonetheless, there are difficulties faced by people voicing their objection to unwelcome sexual behaviour in the workplace, and one of the difficulties is balancing the rights of those making the accusations (complainant) with those accused of such behaviour (respondent). This balancing act becomes acutely apparent when a counter-claim of defamation is made by the respondent against the complainant who alleges unwelcome sexual behaviour and others who publish details to that effect.
An example is that of actor Craig McLachlan who recently launched proceedings of defamation against his colleague, Christie Whelan Bowne, for the ‘false allegations’ she made against him. Proceedings from Mr McLachlan were also instigated against Fairfax Media and the ABC for publishing articles that included the ‘false allegations’ made by Ms Whelan Bowne and, in doing so, exposed him to ridicule, shame, and resultant damage to his reputation.
In the law of defamation, there is an assumption that defamatory allegations published about a person are false. There are a number of defences to defamation, including establishment of ‘fact’ that the claims are truthful and that the person making and publishing the allegations of sexual harassment has a legal, social and/or moral duty to do so.
Under qualified privilege, it must be shown that the person who the allegations are directed at has an interest in receiving them. Further, it must be established that the allegations are received from a person who is not motivated by malice or improper purpose in providing them.
Establishing ‘fact’ from fiction is, however, often difficult in the context of alleged sexual harassment. This is due to the frequent absence of witnesses or forensic evidence to verify what actually took place between the complainant and respondent, and resultant issue of establishing truth when it is one person’s word against another.
In the absence of corroboration from witnesses, those judging ‘truthfulness’ rely on establishing (or otherwise) the credibility of complainant and respondent and their respective plausibility in putting forward and responding to allegations.
What can help in these situations? Greater reliance on a fair and due process for all parties.
What does this look like? A work context that promotes awareness of what is and is not respectful behaviour in the workplace; policy that clearly defines sexual harassment and steps to be taken in reporting and facilitating the investigation of complaints; understanding of and accountability for confidentiality by senior members of staff and parties involved in the complaint; appropriate methodology for identifying and examining written and verbal evidence that is available; clear communication of findings; and agreement to and implementation of strategies to move forward.
Read more about iHR Australia’s training for harassment, which also includes topics relating to Anti-Discrimination and Bullying in the workplace.