THE Sexual Harassment Tribunal (SHT) has finally been established. This may be great news for small businesses and household employers that neither have the capacity nor resources to properly manage a complaint of sexual harassment.

The Sexual Harassment (Protection and Prevention) Act of 2021 (the Act) came into force on July 3, 2023 and created the SHT. The SHT is comprised of 14 members, of which four are attorneys practising for at least 10 years, and four are certified mediators practising for at least 2 years. At least half of the members must be women. Anyone who has been convicted of an offence involving fraud, dishonesty or moral turpitude is ineligible to sit on the SHT.

Although the scope of the Act includes institutions such as schools, prisons and hospitals, and landlords, the focus of this article will be on employers, employees and businesses.

The purpose of the SHT is three-fold. Firstly, it can hear complaints of sexual harassment. The complaints may be made against employees, contractors, clients, or suppliers and may be made by employees, job applicants, employees of a contractor, or by clients of the business. Secondly, it can hear complaints of alleged breaches of the Act by the employer. These breaches could include the failure to investigate a complaint of sexual harassment. Thirdly, it can review the employer’s findings and actions taken in respect of a sexual harassment complaint.

Conducting an impartial investigation and disciplinary hearing into allegations of sexual harassment is not easy, especially for a small business. The Act suggests that employers should have either a human resource department, or a welfare officer or an “Anti-Sexual Harassment Dispute Settlement Committee”. Not many small businesses will have the resources to hire these professionals or the size to justify the expense. For that reason, these businesses should consider having a policy that requires all sexual harassment complaints be made directly to the SHT.

The SHT is better equipped to investigate sexual harassment claims than most small businesses. The Ministry of Gender Affairs now has trained field officers who are authorised to investigate complaints that are made directly to the SHT. These field officers have greater statutory powers than employers, including the power to require any person to attend at such time and place as the officer determines and to give such evidence as the officer considers necessary. The officer may also require any person to produce any document in their possession or control, which would include electronic communication. Failure to comply with the field officer’s request carries a criminal penalty of a fine of up to $1 million or imprisonment for up to 12 months. In contrast, the employer can only request an employee or witness to attend a meeting or to produce evidence and there is limited scope to sanction anyone for non-compliance.

Upon completion of the investigation, the field officer is to submit a report to the SHT, which can either dismiss the complaint as being frivolous or vexatious, or it can convene a hearing. After a hearing, if the SHT finds that the complainant was sexually harassed, it can direct the employer to take specific action against the harasser to ensure that the misconduct ceases. It can even direct the employer to dismiss the harasser.

Unlike the employer, the SHT can order the harasser to pay compensation to the complainant of up to $900,000. Unlike the employer, the SHT’s decision cannot be reviewed by the Industrial Dispute Tribunal (IDT). Anyone who is dissatisfied with their decision can appeal to the Supreme Court. An employer who complies with an order from the SHT to dismiss an employee is protected from a claim for unjustifiable dismissal.

Having all sexual harassment complaints settled by the SHT is not without its drawbacks. We still don’t know when the SHT will become operational. In his throne speech, the governor general said it would be in the 2024/2025 financial year. On June 25, 2024, Minister Olivia Grange named 15 persons to the 14-member tribunal and indicated that the SHT would be occupying space in the same building as the ministry, but there was no indication as to the date when they would start receiving complaints. Thus, it is unclear when it will start accepting complaints. It is also uncertain as to the period within which the field officers will complete their investigations and how long it will take for the SHT’s hearings to be concluded. This will depend, in part, on its workload. If we are guided by the operations at the IDT, hearings there typically take several months, or even years to be concluded. A lengthy investigation and hearing process could pose challenges to businesses and complainants alike. Thorny issues such as whether the accused employee ought to be allowed to remain within the workplace while the investigation is underway will certainly arise.

Whether a business decides to direct all sexual harassment complaints to the SHT or to handle them internally, the process ought to be included in its sexual harassment policy. The Act requires every business, including household employers of domestic helpers, to have a sexual harassment policy by July 3, 2024. Failure to do so could land you in the SHT.

Gavin Goffe is a partner at Myers, Fletcher & Gordon and is a member of the firm’s Labour Law Practice Group. He may be contacted at gavin.goffe@mfg.com.jm or through the firm’s website www.myersfletcher.com . This article is for general information purposes only and does not constitute legal advice.