Workplace sexual harassment complaints do not always surface when the alleged conduct occurs. Sometimes, an employee speaks up years later, after leaving the organisation or feeling more comfortable discussing an experience they previously kept to themselves.
For Australian employers, these complaints can be difficult to navigate. Records may have disappeared, witnesses may have moved on, and the people involved may remember events very differently.
The challenge is to take the complaint seriously while ensuring everyone involved receives a fair process. The question is not simply whether an incident happened years ago, but what the available evidence can reasonably establish today.
Why Historical Complaints Still Need Investigating
When a complaint surfaces years later, employers often wonder why it was not raised earlier and the first reaction may be to discredit it. In reality, there can be many reasons. An employee may have feared damaging their career, upsetting others or being treated differently by colleagues. Others may not have felt ready to discuss the experience until much later.
The Australian Human Rights Commission’s Respect @Work National Inquiry identified significant barriers to reporting workplace sexual harassment, including concerns about workplace relationships and career consequences.
These considerations might have some bearing on a delayed complaint. However, the delay itself does not establish whether the allegation is true or false.
Late reporting doesn’t automatically mean the matter is irrelevant. In many instances, such matters have revealed bigger cultural issues, or patterns experienced by other staff members who have also kept quiet. Regardless of whether one or more persons are affected, organisational responsibility towards the affected individuals does not diminish..
The Challenge of Finding Evidence Years Later
Historical investigations often begin with incomplete information. Emails may have been deleted, workplace systems replaced, and relevant witnesses have left.
Investigators may need to look beyond formal complaint records to identify potentially useful evidence, including messages sent at the time, calendar entries, travel records, personnel files and informal disclosures to colleagues. A combination of these helps to establish witness credibility, in the absence of hard evidence.
For example, an employee may say that a manager made an inappropriate comment at a work function some years earlier. Although nobody else remembers the conversation, the employee finds a message they sent to a colleague that evening describing the incident.
That message may support the account by showing that the employee described the incident at the time. It does not independently prove every detail of the allegation.
Evidence should be assessed for what it establishes, rather than being given more weight than it reasonably deserves.
When Memories Differ, and Witnesses Are Unavailable
Memory becomes particularly challenging when events occurred several years ago. A complainant may remember what was said but not the exact date. A respondent may remember attending the event but have no recollection of the alleged interaction.
Not every inconsistency is equally significant. Uncertainty about a date may be relatively minor, while a disagreement about whether an incident occurred at all may be central to the investigation.
Investigators should assess the reliability of each account, consider available corroboration and avoid treating confidence or emotional presentation as a substitute for evidence.
Former employees can also hold important information, particularly if they witnessed an incident or received an informal complaint. If they cannot be located or decline to participate, the investigator should document the limitation and consider its effect on the findings, without speculating about what the witness might have said.
Procedural Fairness Under Australian Workplace Law
Historical complaints can be difficult for respondents, particularly when they are asked to address events they barely remember or can no longer investigate themselves.
This means the allegations put to the respondent must be sufficiently clear to allow a meaningful response.
Procedural fairness generally requires a person who may be adversely affected by an investigation finding to understand the substance of the allegations and have a reasonable opportunity to respond. The precise requirements depend on the circumstances, applicable law and relevant workplace policies.
For example, an allegation that a manager made inappropriate comments repeatedly over three years may need further detail about the comments, approximate dates or circumstances.
An exact date for every incident may be unrealistic. However, allegations framed so broadly that the respondent cannot meaningfully address them may undermine the fairness of the process.
The investigator must balance these considerations and ensure findings remain within the allegations and evidence properly examined.
The Legal Standard: When Is an Allegation Substantiated?
Australian workplace investigations commonly apply balance of probabilities as the standard of proof. In practical terms, this means considering whether the evidence establishes that the alleged conduct was more likely than not to have occurred.
The principles in Briginshaw v Briginshaw (1938) 60 CLR 336 are also relevant when evaluating serious allegations. The case does not create a higher standard of proof, but the seriousness of the allegation and the consequences of a finding inform the careful assessment of the evidence.
A lack of independent corroboration does not automatically prevent an allegation from being substantiated. Equally, an investigator should not resolve conflicting accounts through speculation.
Where the evidence is insufficient, an allegation may be recorded as not substantiated. This does not necessarily mean the complaint was false or that the alleged conduct did not occur. It means the available evidence did not establish the allegation to the required standard.
The investigation report should explain this distinction and the reasoning behind the finding.
Organisational Responsibilities and Independent Investigation
Historical allegations may reveal concerns beyond the specific incident, such as ineffective reporting processes or previous management failures to address complaints.
Under the Sex Discrimination Act 1984 (Cth), employers and persons conducting a business or undertaking have a positive duty to take reasonable and proportionate measures to eliminate, as far as possible, specified unlawful conduct, including workplace sexual harassment and related victimisation.
An older complaint may therefore highlight current prevention or reporting issues, even where the original allegation cannot be conclusively established. Any broader organisational concerns should be considered separately and addressed through an appropriate process.
Where allegations involve senior employees, previous management decisions or potential conflicts of interest, an independent workplace investigator may help ensure the evidence is assessed impartially. Independence does not remove evidentiary limitations, but it supports transparent reasoning and defensible findings.
Final Thoughts
Historical sexual harassment complaints require careful investigation, not assumptions based on how much time has passed.
Australian employers should focus on gathering available evidence, assessing accounts fairly, providing respondents with a meaningful opportunity to respond and acknowledging where the evidence has limitations.
A sound investigation may not resolve every factual question. It should, however, clearly explain the inquiries undertaken, the evidence considered and the reasons for each finding.
For organisations dealing with historical allegations, that is the foundation of a fair and defensible workplace investigation.
Central HR can provide practical advice on workplace relations, compliance, and investigations, including investigating historical workplace sexual harassment complaints and addressing evidentiary challenges. This support helps businesses assess available evidence, navigate complex workplace issues, and manage sensitive matters with confidence.
Frequently Asked Questions
Q: Can an employer investigate a sexual harassment complaint made years later?
Yes. A delayed complaint is not automatically unsuitable for investigation. Employers should consider the available evidence, relevant workplace policies and applicable legal obligations. Separate legal claims may be subject to specific time limits.
Q: Does delayed reporting make a complaint less credible?
No, not by itself. Investigators should consider the circumstances of the delay without assuming it proves or disproves the allegation.
Q: Can an allegation be substantiated without independent witnesses?
Yes. There is no universal requirement for corroboration. The investigator must assess the available evidence as a whole against the applicable standard of proof.
Q: What happens if the respondent cannot remember the incident?
A lack of recollection does not establish whether the incident occurred. The investigator should consider the response alongside other available evidence and provide a fair opportunity to address the allegations.
Q: What does an unsubstantiated finding mean?
It generally means the evidence was insufficient to establish the allegation to the required standard. It does not necessarily mean the allegation was false.
Q: When should an organisation appoint an independent investigator?
An independent investigator may be particularly appropriate where allegations involve senior employees, potential conflicts of interest or complex competing accounts.
