POSH (Prevention Of Sexual Harassment) Complaint Process

POSH Complaint Process

Introduction

Section 9 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (the “POSH Act 2013”) or Women Harassment Act provides unequivocally that an aggrieved woman may file a written complaint with the Internal Complaints Committee (ICC) or Local Committee, as applicable. As a result, this clause emphasises the written form of the sexual harassment complaint.

The POSH Act 2013 does not recognise and hence does not provide for anonymous sexual harassment complaints. The Delhi High Court overturned the ICC’s decision in Manjeet Singh v. Indraprastha Gas Limited 236 (2017) DLT 396 because the complaint was anonymous.

Companies may, as a matter of corporate policy, use discretion and investigate anonymous complaints to the extent practicable, but they are not required to do so. Although the POSH Act 2013 does not permit anonymous complaints, it is not recommended that businesses disregard them.

Anonymous complaints show that the victim is hesitant to come out and identify her identity. Companies can address this issue by bringing in an external member for POSH of the ICC to talk with employees to acquire further evidence that will allow the ICC to initiate an investigation.

Rules For Handling POSH Cases

Several clauses in the POSH Law (Women Harassment Act) clauses allow employers to establish and enforce service norms when determining sexual harassment claims.

Among these are:

• Section 11 specifies that while conducting an investigation, the Internal Committee must investigate the complaint in line with the service regulations’ terms, failing which the POSH Law (Women Harassment Act) provisions must be followed.
• Section 13 specifies that if the charges against the Respondent are proven, the Internal Committee shall suggest to the employer that the wrongdoing be dealt with in accordance with the service rules. The same is reinforced in Rule 9 of the POSH Law, which advocates actions against the Respondent, such as a written apology, warning, reprimand, and so on, if such penalties are not provided for in the service regulations.
• Furthermore, under Section 14, the employer has the authority to penalise any wrongdoer who has made a false complaint or provided false evidence.
• Section 17 empowers the employer to penalise the malefactor who violates the confidentiality restrictions of the sexual harassment procedures in accordance with the service standards.
• Section 18 allows anybody dissatisfied with the Internal Committee’s recommendations to appeal to the authority specified in the service regulations.
• Finally, it is the employer’s responsibility to regard sexual harassment as misbehaviour and to deal with it in accordance with the service norms outlined in Section 19(i) of the POSH Law.

POSH Law does not define service norms, which is consistent with the different interpretations of service rules in the commercial and governmental sectors. While national and state governments have legally mandated service regulations to follow, many industries and Public Sector Undertakings (PSUs) do not. It is important to highlight that any internal procedures or regulations established by private enterprises with their workers are just a contractual connection between the parties and should not be regarded as service rules.

POSH Complaint Process

The Complaints Committee/s must be aware of the six phases (containing fifteen processes) for dealing with a complaint of workplace sexual harassment, as outlined below.

Stage One: The Complaint Was Received

A fair, quick, and unbiased inquiry process begins with a Complaints Committee that fosters trust and confidence throughout the investigation.

Step 1 : Accept and acknowledge Acceptance of the Complaint

• Within three months of the last alleged event, the complainant files a sexual harassment complaint in writing to the Complaints Committee or any other person authorised by the organisation / District Officer (i.e. Nodal Officer) to accept and manage sexual harassment complaints.
• Posh Training and Skill Development: An Institutional Duty It is critical that the Committee, as well as any other person designated by the organisation / District Officer to receive or otherwise handle a sexual harassment complaint, receive the necessary competency and skill-building posh training for managing a complaint and/or any concern related to workplace sexual harassment.

When a complaint is received, it should be examined for:

1. In the workplace context where the sexual harassment complaint is to be addressed under the Act, such as Service Rules, Workplace Policy, Vishaka Guidelines, and related legislation.
2. The complaint is clear.
3. Additional information from the complaint is required.

Step 2: Meet with the complainant and discuss options for official and informal resolution options.

• The complainant must be informed of the subsequent procedure as well as the informal and official avenues for remedy.

Step 3: Conventional System

• If the complainant elects to use the informal method to settle her complaint/experience of workplace sexual harassment, it is the obligation of the person authorised to receive and handle the Complaints Committee to investigate and enable able options to address the issue.
• This can involve counselling, teaching, orienting, or warning the respondent to discontinue the unwanted behaviour as soon as possible or selecting a neutral person to act as a conciliator between the parties to settle the complaint through conciliation.
• However, before suggesting conciliation, the Committee must examine the gravity of the issue and, if required, advise and assist the complaint in choosing the official path.
• The Complaints Committee would never advise the complainant to settle the dispute directly with the respondent.
• If such an informal procedure is successful, the conciliator must record the resolution and transmit it to the ICC/LCC, who will then forward it to the employer/District Officer for future action based on the resolution.
• Employers/District Officers are accountable for taking precautions to protect the complaint from retaliation.
• Even if the person in charge of monitoring the complaint feels that the matter may be settled informally, the complainant has the last say.

Step 4: Formal Mechanism for POSH At Work

1. If the complainant chooses formal redress or the nature of the complaint requires formal redress, the Complaints Committee replies to the complaint.
2. External members for POSH of the Complaints Committee must have no conflict of interest with either the parties involved or the conclusion.
3. Ascertain that the independent third-party member has extensive knowledge, expertise, and experience dealing with workplace sexual harassment accusations.

Step 5: Respondent and Reaction for POSH At Work

• In accordance with the method outlined in the Service Rule, or in the absence of the same
• The Complaints Committee will notify the responder in writing that a complaint has been received within seven days of receiving it.
• Within ten days, the responder will have the option to respond in writing to the complaint.

Stage Two: Planning Carefully

Step 6: Prepare the Document

A sound investigation is dependent on sound preparation. This entails taking the following measures into consideration:

1. Documents: Make a separate confidential file for the complaint and all future associated documentation.
2. Examine the Sexual Harassment Of Women At Workplace law and Policy: Have a thorough awareness of the Act/Rules, as well as the applicable Service Rules, Workplace Policy, Vishaka Guidelines, existing practises, and associated regulations.
3. Make a List: Make a list of all the dates and events related to the written complaint, as well as the names of any witnesses.
4. Witnesses who are relevant: The names of anyone thought to have observed the alleged acts or who may have been aware of additional information directly linked to the complaint may be included in the complaint. The names of witnesses may also be included by the respondent. Furthermore, the Complaints Committee has the authority to summon as a witness anybody it considers has something to contribute to the investigative process.
5. Documents in Support: Obtain and evaluate any necessary supporting documents, including those given by the complainant and responder.
6. Act swiftly: Make a plan. This may be used as a preliminary checklist to ensure that all key areas are addressed. It includes the following:

• The identities of the parties and witnesses who will be questioned
• Any documented evidence that must be scrutinised
• Timeline

Step 7: Proposal

1. Interim Measures: While a complaint is being investigated, the complainant may formally request her transfer or the respondent’s transfer, or leave (up to 3 months). She can also ask the Complaints Committee to prevent the responder from reporting on her job performance, writing her confidential report, or overseeing her academic activity (in case she is in an educational institution). Even if no such request is made, the Complaints Committee must take corrective action. These steps must be taken in order to prevent potential continued sexual women harassment.
2. Maintain consistent, timely contact with all parties throughout the process: Provide complainants with any special support they may require, such as counselling, health-related issues, or leave authorization.

Stage Three: Interviews

Step 8: Prepare an interview schedule for the Complainant, Witnesses, and Respondent.

• Before conducting interviews, the Complaints Committee should select which problems should be pursued for questioning based on the outcomes of the preceding processes.
• Individuals are interviewed in order to acquire information related to the complaint.
• Interviews should be performed in private with each individual.

Step 9: Examine the Completeness of the Data Collected

The Complaints Committee should assess the information obtained and its factual relevance to each part of the complaint. This will assist in determining if there is sufficient information to decide on the complaint.

Stage Four: Reasoning

Step 10: Once the data and evaluation are complete, the Complaints Committee will make its reasoned finding(s), which will require the Complaints Committee to:- Identify the content of each component of the complaint.

• Determine whether or whether the unwanted sexual women harassment occurred on a balance of probabilities.
• Check that such behavior/conduct is defined as sexual women harassment under the appropriate Act/Rules, Policy, Service Rules, or legislation.
• Comment on any underlying factors that may have played a role in the occurrence.

Step 11: Make a chronology to assist you in understanding the sequence of events around the complaint.

Step 12: Examine the similarities and discrepancies between the interviewers’ statements.

Stage Five: Finding And Recommendation

Step 13: Seeking

• Based on the preceding, the Complaints Committee must determine whether the complaint is supported, denied, or inconclusive.
• Where both parties are workers, the ICC/LCC should discuss its conclusions with both parties before finalising them and give them with a chance to make representations against it before the Committee.

Step 14: Guidelines

The Grievance Committee shall then make appropriate recommendations based on its findings, which may include:

1. If the Complaints Committee cannot uphold the complaint, it will suggest that no action be taken.
2. If the Complaints Committee finds the Complaint valid, it may suggest the action specified in the applicable Policy or Service Rules, which may include a termination warning.
3. If the sum is not paid, it can be reclaimed as a land revenue arrear. The Complaints Committee may also make further suggestions to address the underlying problems contributing to the Sexual Harassment Of Women In the Workplace.

Stage Six: Report

Step 15 : Report Creation

• The Complaints Committee will draught a final report that includes the following components:
• A breakdown of the many components of the complaint;
• A description of the procedure that was followed;
• A discussion of the background information and documentation supporting or refuting each component of the allegation;
• An examination of the data obtained;
• As previously indicated, the findings
• Recommendations:
• An investigation must be completed within 90 days, and a final report must be delivered to the Employer or District Officer (as applicable) within 10 days.
• This report will also be made accessible to the parties involved. The recommendations must be implemented by the Employer or District Officer within 60 days.
• If a person is dissatisfied with the Complaints Committee’s findings or recommendations, or if the recommendations are not implemented, they may file an appeal in an appropriate court or tribunal, as prescribed by the Service Rules, or, if no such service rules exist, in such manner as may be prescribed.
• Given that most workplaces today are gender unequal and male-dominated, women’s complaints must be heard equitably and not disregarded.
• The failure to establish a complaint or provide enough proof will not result in legal action against the complainant.
• Making a false or malicious complaint, on the other hand, is a crime, as is presenting a falsified or deceptive document.

Final Takeaway

The complaint must be filed within three months of the occurrence, along with any documentation proof or witness names, if available. The committee may also extend the timetable for another three months if it is satisfied with the grounds prohibiting a complaint from being filed within the first three months. The complaint may be made in any form, including by phone or email. Still, every oral communication must be followed by written communication. If a complaint cannot be made in writing, the presiding officer or any committee member must assist the individual in making the complaint in writing.

POSH lawyers play a crucial role in compliance with Posh law. Suppose the offended party is unable to file a complaint. In that case, anyone with knowledge of the occurrence, such as a family member, relative, friend, or coworker, may do so on their behalf. It is the individual who receives the complaint’s obligation to notify the committee members (external members for POSH).