How Should HR Handle a Repeat Offender in a POSH Case When the System Fails to Protect?

Dear All,

I am working in the facility management industry in HR. I would like to take suggestions from learned members of this forum.

Employee Complaint and Investigation Process

One of our female employees complained against her reporting manager to the IC, stating that he was verbally harassing her, which made her unable to work. Before raising this issue with the IC, she had discussed these issues with the General Manager, who didn't take any action. After three attempts to seek support, she finally complained to the IC. The IC initiated the investigation, and the respondent was not allowed to work at the same place but was assigned to a separate branch during the investigation period.

Challenges During the Investigation

However, during the investigation, he instigated his team members to write against the complainant to the IC, even though he was working at a different location. He also told his colleagues that he was in a senior position and the complainant would not be able to stand against him. Some senior members of the management team were supporting him. The investigation took around two months, and the complainant had three hearings with the committee. She was under tremendous stress and was offered a transfer, which she clearly refused.

There was no communication from the IC team to the complainant regarding the final status of the investigation, but we found out that the respondent was transferred from our workplace to a different city and state (which happens to be his native place).

Subsequent Developments

Now, after six months, we have learned that the same individual has a sexual harassment case against him in his new workplace. During the investigation this time, the lady who raised the complaint recorded a few videos of the investigation and published them on social media.

She violated the confidentiality of the investigation process, and the individual threatened the company with legal action for allowing this to happen. This time, the lady was somehow made to resign, and the individual is roaming guilt-free in my organization.

Questions for Consideration

1. Does he have the right to pursue legal proceedings against the organization?
2. Though it was wrong for the lady to do so, is it right to force her to resign?
3. The individual is a repeat offender; is it not the organization's responsibility to take stringent action against such people?
4. Please note that it is an MNC company with a strong support system, but as an HR professional, I feel that they failed miserably to inculcate values and work culture in their employees.

Dear Colleague,

The details furnished are painful to note, and this is the sorry state of the present scenario. However, one should not tire of establishing the facts, as justice is only available after a long fight. One should be untiring in proving the facts, and it is indeed painful. Persons who engage in wrongful activities are very clever, and many times truth and justice are not established because they are not fighters in mind, and circumstances make them withdraw. This is a fact on which everyone should focus and fight against until the end.

Coming to specifics:

1. Does he have the right to pursue legal proceedings against the organization?

In my opinion, there is no locus standi for such a person to initiate legal proceedings, and the organization can defend itself with the IC report and related documents. Even if litigation arises, the organization will have a good foundation to fight it out.

2. Though it was wrong for the lady to do so, is it right to force her to resign?

The publication on social media indicates the failure of the IC mechanism and is not fair to force her to resign. Both actions may be treated as independent.

3. The guy happens to be a repeated offender; is it not the organization's responsibility to take stringent action against such individuals?

If left unaddressed now, the organization will risk losing its reputation and may face a more complex work environment in the future. The organization is likely to be subject to governmental inquiries and disrepute.

4. Please note that it is an MNC company with a strong support system. However, as an HR professional, I feel they have failed miserably to instill values and work culture in their employees.

This feeling is valid. More than internal members, a member from an NGO can play a significant role in educating the MNC and demanding that the IC should function properly given their external membership. In the future, use this channel to educate the management and IC members for effective handling of grievances.

Overall, such incidents should be taken seriously and approached genuinely. Your sentiments are commendable. You can effectively challenge the system by involving an NGO member to ensure voices are heard, grievances are addressed properly, and prevent escalation to criminal offenses under the IPC.

Hello, In the first place, if the complainant feels that the required investigation is not done, she can approach the Police under the IPC. Secondly, it is unfortunate that the colleagues and seniors of the accused are supporting the accused. Thirdly, the complainant violated the law by breaking confidentiality. That is misconduct, and she has to be punished for that. But fourthly, for that reason, the accused need not be let free. Investigation is done, with videos, and if he is held guilty, he must be punished.

Q1: Legal Rights of the Accused

If the accused has suffered any damage to his reputation or anything else due to making it public, he will have to first approach the IC or employer. Breaking confidentiality is an offense against the company, not the accused. However, if the accused has suffered any damage in the process, he can seek a remedy with the employer first. Failing that, in a court of law against the complainant.

Q2: Resignation of the Complainant

It is wrong to force the complainant to resign. The complainant should not resign. Let the employer take action against her. If making it viral is so damaging that the dismissal of the complainant is inevitable, then as a compromise, she may offer to resign.

Q3: Repeated Offender

The accused is again involved in harassment. This is not to be tolerated by the employer. Regardless of the complainant making it viral, the accused must be punished severely. Dismissal is not the only answer; there are other punishments such as demotion, compensation, transfer, and so on.

Q4: Company Responsibility

Whether an MNC or an Indian company, it has to consider the effects on other employees. No sane employer will take a milder view of such a situation. If the accused is kept free from action, all female employees will be demoralized. Even the male employees will question the employer. That would be a significant blow to the company.

Vibhakar Ramtirthkar, Pune.

Can a sexually aggrieved male employee raise a complaint to the IC committee?

This correction addresses the spelling and grammar errors in the user's input while maintaining the original meaning.

About a Male Employee Complaining of Sexual Harassment

The Act is named The Sexual Harassment of Women at Workplace. This clearly means that the law deals with sexual harassment of women. So officially, legally, a male employee cannot approach the IC. Nonetheless, as a caretaking employer, it is a complaint by a male employee. It may not be under the POSH Act, but the employer has to deal with it. Now, who is capable enough to investigate such a complaint? Obviously, the IC. The IC can investigate, though it may not be under the POSH Act but under the service rules of the organization. The male employee also needs to get his complaint redressed.

Vibhakar Ramtirthkar, Pune.

Legal Proceedings Against the Organization

The accused offender cannot have any case for legal proceedings against the organization for letting the complainant record the proceedings and later disclosing it on social media. First of all, the organization did not permit it to happen; it was done surreptitiously without its knowledge. Secondly, there is no specific provision of the law for an accused to take action against the employer. Section 26, which outlines penalties that may be imposed on the employer, does not mention such actions as offenses under the Act. Section 19, which details the duties of the employer, is also silent on this matter. Section 16 imposes a general embargo on the publication of details, and in this case, only the complainant can be said to have violated the provisions by publishing the proceedings on social media. The general provisions in criminal or civil law regarding defamation do not apply in this case against the organization; at most, they could be used against the complainant. It seems more like an empty threat.