(Arjun Paleri & Harinie Seenivasan)
Introduction
Workplace investigations, though may seem straightforward, are a complex maze that must be carefully planned. These investigations also act as a useful tool for organisations to validate complaints and establish an example for employees to showcase that the organisations’ commitment to handling grievances. One such investigation is the inquiry process carried out by the internal committee (“IC”) under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”). The inquiry conducted under the PoSH Act must follow the principles of natural justice, which encompasses several principles that will ultimately (if challenged in a court) withstand legal scrutiny.
Through this article, we aim to highlight a recent judicial precedent and the resulting importance of conducting certain checks before initiating the inquiry process under the PoSH Act.
Recent Judicial Precedent
The Kerala High Court in Abraham Mathai v State of Kerala1 recently held that an oral complaint cannot substitute a written complaint under the PoSH Act.
In this case, an anonymous complaint was received by the District Collector, who forwarded it to the Local Complaints Committee (“LCC”). The LCC, based on this anonymous complaint, initiated an inquiry under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“PoSH Act”).
During the course of the inquiry, the Respondent (who was perceived to be the anonymous complainant) confirmed that she did not make the anonymous complaint. However, during this inquiry, she made certain allegations against the Petitioner and the same was considered as a complaint by the LCC for initiating an inquiry on these allegations. The LCC prepared a report basis its inquiry wherein it directed the Petitioner to pay INR 19,80,000 as a compensation to the complainant (“Respondent”) and to tender a written apology to the Respondent.
The Petitioner challenged this report and the inquiry on the grounds (amongst others) that a written complaint was not received from the complainant for the LCC to initiate an inquiry in accordance with the PoSH Act.
Considering the facts, the court observed that the allegations made orally during the inquiry meeting cannot substitute the requirement under the PoSH Act for a written complaint to initiate inquiry. Based on this ground and considering other issues with the mode of inquiry, the court observed that the report of the ICC was ultra vires and illegal.
What should the IC consider prior to initiating the inquiry?
While it is of utmost importance to consider every complaint of sexual harassment, it is also equally important to follow the process under the PoSH Act while doing as to ensure that complaints are dealt with swiftly and are not subject to challenge based on procedural grounds.
The following pre-inquiry checks must be done prior to investigation:
Jurisdiction – Complaints against the employer (which includes the senior management level employees) cannot be handled by the IC, these complaints need to be submitted at the LCC. If the IC receives such complaints, the IC should inform the complainant regarding this procedure under the PoSH Act, 2013.
Complaint – Complaints must be written and no oral. If the complainant approaches the IC with an oral complaint, the IC can assist the complainant with putting the complaint in writing and obtaining their signature.
Letter of Authority – If the complaint is filed by a person other than the aggrieved person, then such party2 must submit a letter of authority, which shows that required consent has been obtained.
Timeline – A complaint must be filed within 3 months from the date of incident. The IC may, on showing genuine reasons, allow the complainant to file the complaint after this timeline and up to a maximum of additional 3 months.
Other prima facie checks –
Workplace Test – Complaints can be filed in accordance with the PoSH Act, 2013 for acts of sexual harassment at ‘workplace’. Once the complaint is received, the IC needs to ensure that the act took place at the “workplace” as the IC’s jurisdiction under the PoSH Act is limited to incidents occurring at the workplace. As the definition of ‘workplace’ is wide and could cover any place that is connected to course of employment, most complaints filed with the IC are generally, in our experience, related to the workplace.
Sexual Harassment Test – The IC is authorised to only handle complaints of ‘sexual harassment’. The PoSH Act, 2013 defines sexual harassment to include a wide range of actions that are inappropriate and are of sexual nature. The IC needs to evaluate, upon receipt of the complaint, to establish if the allegations amount to ‘sexual harassment’. In our experience, most allegations fall in the grey i.e., some may perceive the act to be ‘sexual harassment’ and other may not. In such cases, it is recommended that the IC initiate the inquiry and arrive at a conclusion after the inquiry process.
Conclusion
As highlighted above, an important factor in handling workplace investigations, specifically PoSH investigations, is to ensure that the process adopted is watertight and procedurally traceable if challenged in a court. This can be majorly achieved by ensuring that every IC member is aware of the legal requirement under the PoSH Act with regards to conducting an effective inquiry. Trainings for the IC members can be used as a tool to provide them with real life scenarios and case studies to help contextualise the process.