This article is written by Kehkasha Sehgal, pursuing a Certificate Course in Prevention of Sexual Harassment at the Workplace from Lawsikho.com. Here she discusses Sexual Harassment Complaint Hearing.
In an age of #Metoo, women all across the world are finally speaking up, standing tall and fighting back harassment of all types. There is a discussion on the table and its highlighting years of issues that women have faced.
While harassment is faced in all types of situations and by all genders alike, harassment at the workplace faced by women is a specific situation which has been acknowledged by the United Nations and adopted by many countries to help address it.
India being a signatory to the United Nation’s Convention on the Elimination of all Forms of Discrimination Against Women took steps to enact the law on sexual harassment. In 2013, the Government of India notified the Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 and gave the framework of what constitutes “sexual harassment”, the consequences and redressal of such acts.
Definition of Sexual Harassment
As per the Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013; sexual harassment is defined to include the following:
- Physical contact or advances
- A demand or request for sexual favours
- Making sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
The judiciary of this country have deliberated on what is considered as “sexual harassment” and have held that physical contact or advances would constitute sexual harassment only if such physical contact is a part of a sexually determined behaviour. Such physical contact must be in the context of behaviour which is sexually oriented. A mere physical accidental contact even though unwelcome, would not amount to sexual harassment. A physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not amount to sexual harassment.
The Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires every organization with more than ten employees to constitute an ICC. The quorum of the ICC ought to be as follows:
- A presiding officer, who shall be a woman employee of a senior level;
- Two employees with experience in social work or woman-related issues or have legal knowledge; and
- An external member who is well versed in women rights and laws.
The composition has to be 50% women. Further, the law mandates the Company to have a sexual harassment policy in place which prescribes the consequences of actions in relation to sexual harassment.
The Company, among other things, is also required to orgainse sensitisation sessions for its employees.
Procedure for Complaint
The aggrieved woman can approach the Internal Complaints Committee (“ICC”) formed within the organization or the Local Complaints Committee (if applicable), within three months of the incident.
The complaint should be detailed and in writing with the clear and descriptive narration of the incident. It is advisable that the woman complaining about the alleged sexual harassment should preserve all records pertaining to the incident in question in order to prove the harassment suffered.
The complainant should approach the HR in the company and then proceed to file a complaint to the ICC.
On receiving the complaint, the ICC may at the request of the woman attempt to settle the matter through conciliation. In that situation, monetary settlement shall not form the basis of such conciliation and the ICC may guide the parties to an amicable understanding. The meeting should be arranged not later than 3 days.
Consequently, the conciliation report shall have to be submitted by the ICC to the employer and district officer.
In case the option of conciliation is not exercised or is not successful, the ICC shall initiate an inquiry of the matter and the same shall be completed in 90 days. Subsequently, the inquiry report shall be submitted by the ICC within 10 days.
The implementation of the report of the ICC shall be done by the employer within 60 days.
Steps involved in a Complaint Hearing
Notice of Hearing
The ICC shall send the accused and the complainant, a notice of hearing thereby requesting them to prepare a submission, witnesses and other relevant documents.
The notice should be clear and should contain the accusations, date and time of proceedings, the constitution of the ICC, due notice of ex-parte proceedings etc.
It should also give adequate time to the accused and the complainant to prepare written submissions.
The ICC should imbibe the principles of natural justice while conducting the hearing. Briefly, the principles are mentioned herein below for ready reference:
- The authority ought not to have a personal interest in the case which will result in bias of the proceedings
- Both parties ought to be given adequate opportunity to establish and defend their case
- The decision/order should be in writing and must be well reasoned.
It may be noted that the lack of compliance with the principles of natural justice may result in the judiciary dismissing the decision of the ICC.
A just hearing shall include written submissions as well as oral hearing from both parties in order to rule out any bias and have sound judgment.
The first hearing is imperative for the commencement of proceedings and the ICC while conducting the hearing as well as any subsequent hearings should keep in mind the following:
- An order sheet to be prepared for recording the minutes of the proceeding.
- The ICC should ask both the parties to acknowledge the receipt of the notice of hearing.
- The ICC should explain the allegations levelled against the accused to both parties.
- The admittance or non-admittance of charges against the accused should be recorded by the ICC.
- The ICC should issue a notice to either of the parties who are not present for the hearing and give a reasonable time to appear for the second hearing. The said notice should include the consequence of non-appearance of either party i.e. the decision to be taken ex-parte.
- The ICC should disclose the list of witnesses submitted by parties.
- The ICC should also brief the parties on the decorum of the hearings and advise both parties to maintain civility and respect for the committee and the respective parties.
- The provision of confidentiality of such proceedings should be reminded and enforced to the parties.
- The date of subsequent hearings shall be informed at the end of each hearing.
- At the end of each hearing, the order sheet should be signed by both parties and all committee members.
- All subsequent hearings shall include the presentation of witnesses and evidence. Each party shall be allowed to establish their case and all the principles of natural justice shall be followed by the ICC.
- The ICC shall have the responsibility to judge on the presentation of evidence, admission of evidence, rejection of evidence, recording of deposition of witnesses etc.
The presentation of evidence does not have any specific methodology or process specified; however, the ICC may follow the below process for a systemized flow:
- Documentary evidence of the complainant
- Oral evidence of the complainant
- Defence of accused
- Documentary evidence of accused
- Oral evidence of accused
Additionally, it is pertinent to mention that the ICC has powers of a civil court for summoning and enforcing the attendance of witnesses, for examining persons on oath and for compelling production of documents. This can be simply explained in the following situations:
- If the complainant does not attend the hearings, in spite of repeated notices and requests, the ICC can dismiss the complaint itself.
- If the defendant does not attend, the ICC can give an ex-parte decision after providing due notice to the parties.
- If a witness does not attend, the ICC can strike the name of the particular witness from the proceedings and also any portion of the submissions in relation to that particular witness shall have to be dismissed.
- Any document pertaining to an allegation, if not submitted even after repeated summoning, will be dismissed by ICC.
The Sexual harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, 2013 provides that an employer shall be responsible for assisting the ICC in securing the attendance of witnesses, concerned parties and production of documents.
Another important aspect of the hearings is the Examination and cross-examination of the witnesses. Generally, the same includes the following:
Direct examination or examination in chief
In this, the witness is questioned by the party who has called him/her.
In this, the witness is questioned by the opponent.
Under this method, the party who originally called the witness shall examine the issues raised in cross-examination by questioning the witness.
Final order and recommendation
The ICC has a responsibility to conduct all the hearings with a just and reasoned mind. The decision that is arrived at shall have a huge impact on the parties involved. The decision will affect the financial, reputational and mental aspect of the concerned parties. Keeping in mind all the factors, the ICC should give a reasoned decision and issue the order in writing specifying the reason behind the recommendations and the punishment given. Some important aspects of an order are provided below:
- Description of parties
- Facts of case
- Admittance of any allegations
- Submission of complainant
- Submission of accused
- Brief of documents referred; witnesses deposed
- Assessment of the evidence taken into consideration
- Deliberations of ICC
- Recommended punishment
- Reasons for such punishment
The aim of an ideal world is to flourish in a society where evils of sexual harassment and gender discrimination do not exist. The aim is to co-exist peacefully and have a productive and safe work environment.
In the meantime, while such incidents continue to happen, the ICC constituted by the organization should be a committee which is well prepared, aware, and legally bound to provide justice in a situation which is unjust by itself.
There shall be no justice if the ICC decisions are disputed in further proceedings and shall only add to lengthy litigations and distress for all involved.
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