Dinesh Divekar
Business Mentor, Consultant And Trainer
Loginmiraclelogistics
Asso.prof.(commerce & Management)
Kritarth Consulting
Posh Programs; Hr Management Consultants
Bhartiya Akhil
Freelancer
Gannahope
Deputy Commissioner Of Labour..a.p.
KK!HR
Management Consultancy

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--Aggrieved Woman Employee-Complainant Unwilling to File her Sexual Harassment Complaint?----

The Aggrieved Woman Employee personally meets Presiding Officer & Woman Employee-Member Internal Committee of IT Establishment on 20.8.20 & narrates series of Sexual Harassment she was subjected to by her Immediate Superior for past Four months. IC Members ask her to file/submit her Written SH Complaints immediately but she expresses her unwillingness to give any Complaint in writing due to apprehensions & returns to her Work-Desk.

The IC Members reminded her two times to file her SH Complaints as discussed.

What, now the IC should Do or her Employer should do?

Guidelines are Welcome, in fact Solicited to effectively deal with such Cases.

Harsh Kumar Sharan,
Kritarth Consulting Pvt Ltd Spl Educator PoSH Mandatory Programs, External Member, Internal Committees PAN India
#holistichr #PoshMasters
28.8.20

From India, Delhi
Dear all,

There are two issues involved in this post, one is legal and other is the organisation's culture. 

First, let us discuss legal issue. While investigating sensitive cases like sexual harassment, it is important to conduct an investigation in proper legal framework. Against this backdrop, it is important to receive a written complaint. A written complaint is a starting point of investigation. IC cannot function like erstwhile "village panchayat" where verbal complaints were accepted and discussed. 

The second issue is the organisation's culture. The woman hesitation could be out of the following reasons:

a) She fears that her name could get publicity

b) Whether grievance on sexual harassment or otherwise, a company must create a culture of justice in the company. If the employees perceive that such culture does not exist then consequently it will have a fall back on the sexual harassment complaint also. 

c) That the woman endured sexual harassment for the last four months speaks volumes. How come her tormentor mustered the courage to do that? Should we interpret that her tormentor enjoys some protection from the top management?

Additional Comments: - If it is true that the woman employee endured sexual harassment for the last four months then how come her body language was not picked up by other colleagues? Nowadays, every other person boasts of being expert in reading the body language. What happened to the "vibes" that the woman sent through her body language? Why nobody picked up these vibes?

If it is true that sexual harassment went on for the four months then why the other colleagues were silent? Why other women were also silent? Why none of them came forward to report to HR on colleague's harassment? When a person meets with a road accident, not necessarily the Indians come forward to give timely help. Rather they prefer to be bystander and express their sympathy. Has something similar happened with that woman also? Did other colleagues show apathy towards her suffering?

If it is true that sexual harassment went on for the four months then it shows the overwhelming failure of HR also. What the hell HR was doing? What happened to their "employee engagement" initiatives? Why the HR was disengaged with the ground realities? Why they could not find on their own of this harassment through their informal sources?

Thanks,

Dinesh Divekar

From India, Bangalore
Hello Harsh Kumar,

Our learned member Dinesh has raised pertinent issues on the instance cited. It's an undisputeable fact that women folks in our country (not only in India but same is world over) are vulnerable to such harrassments day in & day out. It's more in unorganised sector and tolerated by poorly paid labourers/workwomen. We know IC can't proceed further without filing of formal complaints. And even if there is a complaint filed the fear of weak rhetoric capabilities, lack of witnesses, victimisation and resulting jobloss which might befall are the factors which drive the victims not to raise their voices. Most of these crimes surfaces within the four walls which are other factors to be remedied.

In the era of CCTVs, the gadgets should be installed every where which should be capable of recording voices/sounds could to some extend take the process further.

From India, Bangalore
Sir

It is still surprising that ITcompany didn't know what to do in this context ..even after several incidents of such happened exclusively in ITcompanies .There are several criminal acts like "nirbhaya. Disha Acts and several other judgement s.you can see in Google search womenemployees'sexharrassments .

There is no necessity in writing to be given by such cases.oral statement to heigher authorities is enough for his transfer from that place and separation the two with different works...place an enquiry fact finding then take appropriate action if necessary. Our ultimate motto is to be only save the women from such harrassment and free and fair situation to work happily by any woman in your office with freedom of work as assured by constitu tion to the every citizen irrespective of gender discrimination on anyplace.

It is not the question maybe that woman is mischievous or the aparadhi is innocent .The wanted thing is only the image of that company office branch.

From India, Nellore
Dear Gannahope,

You have recommended that the Internal Committee (IC) can take the oral complaint also. Whatever the position of the law may be, we need to discuss the implications of the acceptance of the oral complaints.

Complaints on sexual harassment are of serious nature. It involves the dignity of the woman as well as the accused. Against this backdrop, an aggrieved woman must be encouraged to file a written complaint. Women of the 21st century are expected to assertive enough to file a written complaint. If the working women do not muster courage even to give a written complaint then they will defy their background, grooming, education etc.

You have quoted the example of Nirbhaya. Please note that Nirbhaya has undergone the sexual assault of the worst kind. She was physically tormented also. Notwithstanding the ordeal that she went through, she stood up and gave evidence to the police. Her tormentors had maimed her and was not able to speak also but undeterred Nirbhaya gave the replies to police personnel's interrogative questions in writing. What tormented Nirbhaya could do, why a working woman in the office cannot do?

Encouraging oral complaints on sexual harassment has a negative side too. What if some woman makes an oral complaint but members of the IC do not entertain such complaint? What evidence an aggrieved woman will have of her oral complaint?

Lastly, we the members of the forum are the third parties and we should look at each case dispassionately. Be it known that all the women are not as white as lilies. What if the culture of the oral complaints is encouraged and if a woman employee, to settle a score with her male colleague, makes a false accusation of sexual harassment? What if some male employee is required to face an enquiry by IC though he is not guilty? Will the character of the male colleague not come under the cloud? Is it easy for a male colleague to continue with the taint?

False allegations of sexual harassment have been going on since time immemorial. If even lord Gautam Buddha was not spared from such accusation then who are we the ordinary mortals? Therefore, let us not show our schmaltz even in the cases of sexual harassment. Let us concentrate on delivering justice and not on the person.

Thanks,

Dinesh Divekar

From India, Bangalore
Mr.Dinesh's post- As a student of Law, I'm reminded of a cardinal principle that -
'Let a hundred guilty be acquitted, but one innocent should not be convicted'. At the same time, I'm saddened seeing the culture of causing harm to the innocent at any cost, is bad for the society. Be it male or female. Despite there is law in force, intended to safe guard the interests of females it's unfair to blame only one gender for ulterior motives. In the process, if the process doesn't guarantee the fair administration of natural justice the very purpose of jurisprudence is defeated. And in the work place equality, natural justice should prevail at all levels and in all circumstances.

From India, Bangalore
Dear Friends,

Mr. Harsh Kumar came out with an issue which is, I will say very common. In our country, majority of the women they do not resort to any formal action against the perpetrators. There are many reasons for it. So many studies are carried out by many on this topic.

Our learned members also contributed well on this topic. They all are dignitaries.

The oral statement to higher authorities is not enough. There is a necessity to give a complaint in writing by the aggrieved women. This is the Law. In case of physical incapacity, the complaint can be filled by her relative, friend, co-worker or by any person who is having the knowledge of the incident, with her written consent. In case of mental incapacity, the complaint can be filled by by her relative, friend, special educator or by qualified psychiatrist or psychologist or by an authority under whose care she is receiving treatment. Complaint can be made by any legal heir or authorised person in case of death of the women.

Why I have written all this things only to mention here that the written complaint by an aggrieved women or on her behalf under certain circumstances is an essential element to proceed under the POSH Act and the IC has to start its process only after receipt of the complaint in writing. This is the Law. Please do not rely on Google search.

In this case IC has to assist the aggrieved women for giving the complaint in writing. The IC Members reminded her two times to file the Complaint is not enough. They have to take some extra efforts by making necessary counselling, showing empathy, emphatically.

Somewhere there is a failure in conducting awareness and orientation programme and thereby such type of hostile environment is there in the organisation as what I feel.

Hope I answered the question raised by Mr. Harsh Kumar.

From India, Mumbai
Sree Divakarji

I do agree with the contents of yours. I wish to clear I referred nirbhaya as Act not as a person. Nirbhaya Act contains several dos and donots in each and every situation s like offices also.

Moreover I am not supporting any mischievous women with personal intention s and provocations. It was understood that...

When come to above case the IC was already allotted and convened a meeting with both parties and requested her to give a written complaint but she didn't but an oral report was brought to the notice of the IC.

I opine that nothing is hindering the IC to make thorough enquiry on the above issueissue with the oral report.

I don't suggest severe punishment either. Avoid nuissance in the office spare them to different places as the IC came and immediate attention was taken. Then if it repeats follow CCArules if applicable.

Every one should remind that Acts are made above ground realities. That's why several amendments required now and Then.

So compelling for written complaint is essential but not possible in every issue .

From India, Nellore
As per section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 a woman, if she is unable to make a written complaint, can give a oral complaint to the Internal Committee or the Local Committee, as case may be, within three months of the incident. As per the statement, the woman employee made the complaint to the Chairman and employee member of the continuous harassment being faced by her for the last four months, so the Internal Committee can take cognizance of the incidents of last three months and proceed in the matter.
It may be premature to comment on the merits of the case. Mere reluctance of the employee to submit the complaint in writing need not lead to doubting it. This is the unfortunate reality in Indian scene where the women employee are often shy to speak about the harassment they have faced. In deed it has come out in the media that almost all working women are daily exposed to sexual harassment, yet many of them desist from making an issue of them as they feel they are likely to be more harassed in the process of seeking justice. So it is better to keep quiet, that may be the logic.
As far as an organisation is concerned, it has come to know of the complaint, it has to take action. To initiate the further process of disciplinary action it is necessary that the employee stands up on her complaint and she is subjected to cross examination. The willingness may be ascertained from her and if she is willing for it, then the formal process can be initiated. But if she is unwilling to cooperate then the organisation has to take cognizance of the matter and hold discrete inquiry and take administrative action like strict warning, transfer etc. The perpetrator of the crime has to be given clear indication that his undesirable activities has been taken note of and he is on notice. In such cases, where there is genuine feeling of being harassed, the organisation has to take exemplary action so that the message spreads across.

From India, Mumbai
Dear Friends,
Indeed it is a nice way of respecting seniors by putting "ji" after their names. Why only seniors, to every one.
With due respect to every one, I would like to reproduce the section 9 of the Act verbatim.
9. Complaint of sexual harassment.—
(1) Any aggrieved woman may make, in writing, a complaint of sexual harassment at workplace to the Internal Committee if so constituted, or the Local Committee, in case it is not so constituted, within a period of three months from the date of incident and in case of a series of incidents, within a period of three months from the date of last incident:
Provided that where such complaint cannot be made in writing, the Presiding Officer or any Member of the Internal Committee or the Chairperson or any Member of the Local Committee, as the case may be, shall render all reasonable assistance to the woman for making the complaint in writing:
Provided further that the Internal Committee or, as the case may be, the Local Committee may, for
the reasons to be recorded in writing, extend the time limit not exceeding three months , if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period.
(2) Where the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death or otherwise, her legal heir or such other person as may be prescribed may make a complaint under this section.
Since our learned friend and senior member / super moderator KK!HR ji has not considered the full section 9 while giving his response I thought of reproducing it verbatim.
Also I thought of reproducing it since our another senior member Gannahope ji has opined that nothing is hindering the IC to make thorough enquiry on the issue with the oral report.
Sorry, I am going letter by letter of the Act.

From India, Mumbai
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