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FILING A COMPLAINT: PROCEDURE AND FORMATS & COMMON MISTAKES MADE DURING THE COMPLIANCE PROCESS

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This article is written by Annu Kumari of 8th Semester of Lovely Professional University, an intern under Legal Vidhiya

Abstract

The Prevention of Sexual Harassment at the Workplace is a legal obligation as well as a moral imperative. In the contemporary world it is required for a professional landscape at the workplaces which is free from any kind of negative encounters on the basis of gender or other factors. The Prevention of Sexual Harassment at the Workplace (POSH) Act stands as a beacon, providing a legal framework to address and prevent instances of sexual harassment. Filing a complaint under POSH is a crucial mechanism that empowers individuals to assert their rights and contribute to the creation of a safe and respectful work environment.

This article aims to clarify the process of submitting a complaint under the POSH Act by providing insights into the detailed procedures, necessary formats, and common challenges that individuals may face throughout the compliance process. As organizations endeavour to create inclusive and safe workplace, an in-depth understanding of POSH compliance becomes essential for nurturing a culture that prioritizes the dignity and well-being of each employee.

Effectively navigating this complex terrain employees to be familiar with their organization’s POSH policy, recognize the key members of the Complaints Committee. Additionally, pivotal elements such as maintaining confidentiality, presenting supporting evidence, and actively participating in the investigative process play a crucial role in ensuring a just and thorough examination of complaints.

Keywords

Sexual Harassment, Complaint, Compliance Process, Prevention, Investigation, Confidentiality.

Introduction

The Prevention of Sexual Harassment at the Workplace Act, built upon principles of justice and equity, stands as a legislative tool with the primary goal of preventing and rectifying instances of sexual harassment within the workplace. Its significance extends beyond merely emphasizing the creation of secure work environments. It also mandates that organizations establish effective mechanisms for promptly addressing and resolving complaints. With a focus on fostering accountability and the well-being of all employees, POSH establishes the groundwork for workplaces committed to professionalism and inclusivity. This 2013 Act was brought with an aim to protect the employees and provide a safe working environment. This Act deals with the provision of having a constructive mechanism for complaint redressal for women. It provides for the establishment of an Internal Committee at all workplaces with 10 or more employees. The employees of an organization with less than 10 employees are required to file such complaints at the Local Committee with is constituted by the District Officers.

This Act has been a boon to the society of increasing workforce and have helped in the redressal of cases related to sexual harassment at workplaces. Yet, the complaint process has several drawbacks which are discussed further.

Legal Provisions

The POSH Act, implemented across various nations, establishes legal guidelines for the complaint process, aiming to address and prevent incidents of sexual harassment in the workplace. The following are key legal stipulations pertaining to the complaint process under the POSH Act:

  1. Creation of Internal Complaints Committee (ICC): The POSH Act mandates organizations with ten or more employees to form an Internal Complaints Committee (ICC), tasked with addressing and resolving sexual harassment complaints.
  2. Composition of Internal Complaints Committee: The legislation delineates the composition of the ICC, necessitating the inclusion of at least one external member—a third party familiar with issues related to sexual harassment.
  3. Timeline for Filing Complaints: The Act dictates that complaints of sexual harassment must be filed within three months of the incident. However, allowances for an extension of this period exist under specific circumstances.
  4. Emphasis on Confidentiality: POSH underscores the significance of maintaining confidentiality during the complaint process. The identities of the complainant, respondent, and witnesses are to be kept confidential to the maximum extent possible.
  5. Protection from Retaliation: The legislation prohibits any adverse action or retaliation against the complainant or witnesses who file a good-faith complaint. This safeguard aims to prevent individuals from being dissuaded from reporting instances of sexual harassment.
  6. Impartial Inquiry Requirement: The ICC is obligated to conduct a fair and impartial inquiry into the complaint. Both the complainant and respondent possess the right to present their cases, provide evidence, and call witnesses.
  7. Recommendations and Penalties: Following the inquiry, the ICC submits recommendations to the employer. If allegations are substantiated, the employer is required to take appropriate action against the perpetrator, potentially involving disciplinary measures.
  8. Appeal Process: The Act provides for an appeal mechanism for either the complainant or respondent who is dissatisfied with the ICC’s findings or the actions taken by the employer.
  9. Mandatory Training Programs: Employers are obligated to conduct awareness programs and training sessions to sensitize employees about the provisions of the POSH Act, promoting a workplace culture that prevents sexual harassment.
  10. Submission of Annual Reports: Organizations must submit an annual report to the relevant authority, detailing the number of complaints received, actions taken, and awareness programs conducted.

Procedure for Filing Complaint

Employees who have been subjected to sexual harassment or have knowledge of any incident of harassment are entitled to file a complaint with the ICC. The POSH Act mandates that the complaint should be made in writing and should be addressed to the ICC or the Local Complaints Committee (LCC), as the case may be. The complaint should contain details of the incident, the name of the respondent, and any other relevant information. It is important to note that the complaint should be filed within a time limit of three months from the date of the incident.

Chapter IV of the POSH Act contains the provisions of Complaint. According to Section 9[1] any aggrieved woman may file a written complaint to the Internal Committee or the Local Committee within a period of three months from the date of the incident, in case there was a series of incidents then within three months from the date of the last incident. It is the duty of the Presiding Officer or other members of the ICC to provide assistance to the aggrieved woman. The legal heir of the women is allowed to make the complaint if the former is not mentally or physically capable of making the complaint. The further sections state that the committee may on the request of the women take steps to settle the matter before initiating an inquiry as per Section 11[2] of the Act.

Section 11 along with Chapter V of the Act provides for the inquiry on the basis of the complaint filed by the women aggrieved due to sexual harassment at workplace. If the prima facie case exists then a case under Section 509[3] of the Indian Penal Code, 1860 shall be filed.

Emphasizing the paramount importance of confidentiality, POSH requires the identities of complainants, respondents, and witnesses to be kept confidential to the maximum extent possible. To shield complainants and witnesses from adverse actions, the legislation prohibits retaliation, encouraging the reporting of incidents in good faith. The ICC, tasked with conducting impartial inquiries, affords both complainants and respondents the right to present their cases, provide evidence, and call witnesses. Following an inquiry, the ICC submits recommendations to the employer, compelling appropriate action against the perpetrator if allegations are substantiated, potentially involving disciplinary measures. The Act further introduces an appeal process for dissatisfied complainants or respondents, fostering transparency and fairness in the resolution process. In line with preventive measures, employers are obligated to conduct mandatory awareness programs and training sessions, cultivating a workplace culture that actively prevents sexual harassment. Finally, organizations are required to submit annual reports, detailing the number of complaints received, actions taken, and awareness programs conducted, thus reinforcing accountability and transparency in addressing sexual harassment.

The Complaint Process:

  1. Familiarizing with the POSH Policy: The journey begins with a thorough understanding of your organization’s POSH policy. This document outlines the procedures, expectations, and support mechanisms available to individuals facing or witnessing sexual harassment.
  2. Identifying the Complaints Committee: At the heart of POSH compliance is the Complaints Committee, a designated body responsible for investigating and resolving complaints. Knowing its members and functions is crucial for a complainant.
  3. Drafting a Detailed Complaint: Complainants are encouraged to articulate their grievances with clarity and detail. Providing a comprehensive account of the incident, including dates, times, and individuals involved, ensures a robust foundation for investigation.
  4. Maintaining Confidentiality: POSH recognizes the sensitivity of such matters and emphasizes the need for confidentiality during the complaint process. This safeguard the interests of all parties involved and encourages open communication.
  5. Submitting Supporting Evidence: If available, providing supporting evidence such as emails, messages, or witness statements strengthens the credibility of the complaint and aids in a more thorough investigation.
  6. Cooperating with the Investigation: Complainants play a vital role in the investigative process by promptly responding to requests for additional information and participating in meetings with the Complaints Committee.

Format for Filing a Complaint under POSH:

  1. Header: It includes the name of the organization, date, and a reference number.
  2. Personal Information: Name of the victim, employee ID, department, and position.
  3. Contact Details: The contact information, such as email address and phone number.
  4. Details of the Incident: Date, time, and location of the incident. Description of the incident, including specific actions, words, or behaviors that constitute sexual harassment.
  5. Names of Individuals Involved: Identification of the alleged perpetrator and any witnesses.
  6. Supporting Evidence: All supporting evidence, such as emails, messages, or witness statements should be attached.
  7. Narrative: This provides a detailed narrative of the incident, including the impact on you and any previous occurrences.
  8. Action Requested: Specifying the action that is sought for, such as an investigation, disciplinary action, or preventive measures.
  9. Confidentiality Concerns: If confidentiality is a concern, it should be explicitly stated in the complaint.
  10. Signature: The complaint should be signed and dated to confirm its authenticity.

Mistakes Made During the Compliance Process

To ensure effective compliance with the POSH Act and to address the common mistakes, organizations need to take proactive measures. This includes conducting regular awareness and sensitization programs on the POSH Act for employees and members of the ICC. It is crucial to ensure that the ICC is properly constituted and functions effectively to address complaints in a timely and sensitive manner. Providing a safe and supportive environment for the complainant is essential to encourage reporting and prevent retaliation. Additionally, organizations should establish clear guidelines for the documentation of complaints and the redressal process to ensure transparency and accountability.

During the process of filing a complaint under the Prevention of Sexual Harassment at the Workplace (POSH) Act, individuals may inadvertently make certain mistakes that can significantly impact the effectiveness of the entire compliance process. One common error is the delay in reporting, where individuals wait too long after the incident to file a complaint, potentially hindering the investigation and affecting the complaint’s credibility. Another frequent mistake is submitting incomplete or vague complaints, which may impede the investigative process and complicate the resolution of the issue. Maintaining confidentiality is crucial, and the mistake of discussing the complaint with unauthorized individuals can compromise the integrity of the process and may have legal ramifications. Non-cooperation with the investigation, ignoring established employer procedures, exaggerating or falsifying information, and neglecting to seek legal advice are additional pitfalls that individuals might encounter during the complaint process. Failure to document incidents as they occur, not following up on the progress of the complaint, and not utilizing available support systems can further impact the overall efficacy of the process. Navigating the POSH complaint process requires diligence, adherence to procedures, and an awareness of potential drawbacks to ensure a fair and effective resolution of sexual harassment complaints in the workplace.

Conclusion

In conclusion, the journey of filing a complaint under the Prevention of Sexual Harassment at the Workplace (POSH) Act is a critical step towards fostering a workplace environment that prioritizes respect, dignity, and equality. While the legal provisions and procedural guidelines under POSH are designed to ensure a fair and just resolution, individuals must navigate this process with care to avoid common pitfalls. Timely reporting, clear and comprehensive complaints, confidentiality, and active cooperation with investigations are imperative. Additionally, adherence to employer procedures, truthfulness in statements, and seeking legal advice when needed contribute to a more robust and effective complaint process. By learning from the mistakes discussed and embracing best practices, employees can play a crucial role in creating workplaces where every individual feels safe, respected, and empowered. The POSH Act stands as a beacon, but its true impact is realized when individuals, organizations, and the complaint process work in tandem to eradicate sexual harassment from the professional sphere, ensuring a future where workplaces are truly inclusive and supportive for all.

References

  1. https://www.indiatoday.in/information/story/what-is-posh-meaning-and-procedure-of-complaint last visited on 15/01/2024
  2. https://www.mondaq.com/india/discrimination-disability–sexual-harassment last visited on 17/01/2024
  3. https://vakilsearch.com/blog/posh-compliance-at-workplace/ last visited on 17/01/2024
  4. https://irglobal.com/article/conducting-posh-investigations-under-the-posh-act-and-rules/ last visited on 15/01/2024
  5. https://www.indiacode.nic.in/bitstream/123456789/2104/1/A2013-14.pdf last visited on 18/01/2024

[1] Prevention of Sexual Harassment of Women at Workplace, 2013, § 9, No. 14, Acts of Parliament, 2013 (India).

[2] Prevention of Sexual Harassment of Women at Workplace, 2013, § 11, No. 14, Acts of Parliament, 2013 (India).

[3] Indian Penal Code, 1860, § 509, No. 45, Acts of Parliament, 1860 (India).

Disclaimer: The materials provided herein are intended solely for informational purposes. Accessing or using the site or the materials does not establish an attorney-client relationship. The information presented on this site is not to be construed as legal or professional advice, and it should not be relied upon for such purposes or used as a substitute for advice from a licensed attorney in your state. Additionally, the viewpoint presented by the author is of a personal nature.

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