GRIFFITH UNIVERSITY. A Guide to Handling Complaints of Harassment, Bullying and Discrimination

Transcription

1 GRIFFITH UNIVERSITY A Guide to Handling Complaints of Harassment, Bullying and Discrimination 1

2 TABLE OF CONTENTS SECTION 1 - OVERVIEW Overview 4 Background Information 5 Legal Issues 5 Context 6 OPTIONS FLOW CHART 9 SECTION 2 - ROLES Contact Officers 11 Senior Managers 12 Relevant Senior Officers 17 Mediators 20 Complaint Investigation Committee 21 SECTION 3 APPENDICES Appendix A - Definitions 23 Appendix B - Legal Issues 27 Appendix C - Contact Officers 29 Appendix D - Managers 33 Appendix E - Procedure Explained 36 Appendix F - Checklists Contact Officers 40 Managers 41 Relevant Senior Officers 42 Appendix G - Resources 43 Appendix H - Policy and Procedures on 45 Harassment, Bullying & Discrimination Approved 15 July

3 SECTION 1 OVERVIEW 3

4 OVERVIEW SECTION 1 These guidelines are designed for those staff that have a major role in the prevention and resolution of complaints of harassment, bullying and discrimination. They should be used in conjunction with the University s Policy on Harassment, Bullying and Discrimination and the Procedures for Resolution of Staff and Students Complaints of Harassment, Bullying and Discrimination. The University is committed to providing an environment in which staff and students can work freely, comfortably and safely, ensuring that acts of harassment, bullying and discrimination are prevented. Staff, students and visitors to the University can expect professional behaviour that shows respect and consideration for others. The University s Code of Conduct and Student Charter outline the standards of behaviour expected. These can be found in the Policy Library in: Code of Conduct and Student Charter In particular the Code of Conduct states that all staff: Treat all persons justly, irrespective of gender, sexual orientation, race, disability, religion, marital status, age, political conviction or other grounds Do not engage in behaviour that could be considered bullying, such as behaviour which is intimidating, insulting, offensive, degrading, or humiliating to others Do not harass others or discriminate against them Do not disregard University policies and procedures regarding relationships between individuals The Student Charter states that students can expect: To be treated with courtesy in their interactions with University staff, To be able to participate fully in the University's activities free from harassment and discrimination, and that students are expected to: Treat University staff with courtesy at all times, Observe reasonable standards of behaviour with respect to all University activities, thereby refraining from harassment or discrimination against other students and staff. The aim of the University s Procedures for Resolution of Staff and Students Complaints of Harassment, Bullying and Discrimination is to facilitate the resolution of issues by addressing complaints as quickly and informally as possible. The steps outlined in the procedure are not mandatory and do not have to be followed sequentially. These guidelines are designed to elaborate on those steps, and provide general information to those people who have particular and specified roles to play in the resolution of complaints. 4

5 GUIDE ORGANISATION This guide is organised by role, to assist in working through the steps of the Resolution Procedures. The diagram on page 9 provides an overview of the procedural steps and actions that may be taken within each. BACKGROUND INFORMATION In any form of alleged harassment, bullying or discrimination it is the recipient's experience of the effect of the behaviour, rather than the respondent s perception of the intent of the behaviour, which is the key factor. In some cases, the person whose behaviour caused the complaint will not be aware that the behaviour was distressing to others. Regardless of intention the University s approach is to take all issues seriously and assist people to resolve them. The emphasis in the University s policy and procedure is on the resolution of issues, not blaming or punishing wrong doers. Strategies that seek to assist parties involved in a complaint to understand how the issues arose and what might be done to redress them are more successful than formal investigations and the emphasis in this guide is in assisting people in these processes. Not withstanding this emphasis, there may be instances where a complaint is so serious that misconduct procedures need to be commenced. (See p19) At any stage of the resolution process the complainant can exercise their right to take their complaint to the Queensland Anti-Discrimination Commission or the Australian Human Rights Commission and the complainant should be advised of this option. Definitions Definitions of terms used in these guidelines are provided in Appendix A. Legal Issues (1) The principles of natural justice underpin the resolution of complaints. Decision makers must act fairly and without any actual or perceived bias. The principles of natural justice determine that: A person is innocent until proven guilty Justice delayed is justice denied Persons should have an opportunity to present their views and respond to any adverse material People should know the origin of evidence against them All parties to a decision should have an opportunity to put their case and all relevant arguments considered before a decision is made. (2) Where an individual states they have been harassed, bullied or discriminated against the University (and its officers), in investigating a complaint, can protect themselves by following three principles: 5

6 1. Relevance A complaint and any following investigation should be limited to specific matters related to the complaint. 2. Confidentiality When investigating a complaint of harassment or discrimination, the number of people who know of the matter should be kept to an absolute minimum. Only those who need to know as part of their duties should be informed. Every person who becomes aware of the alleged harassment or discrimination has a duty to maintain confidentiality and should be advised of this. It is important to maintain the privacy of individuals involved. However, this is a complaint resolution process and information will need to be given to people involved in the process, particularly if the complainant chooses to follow the process step by step. 3. Good Faith Complaints and their investigation should be carried out in good faith. Anyone involved in a complaint should not be motivated by malice or ill will or any ulterior motive such as a desire to taint a person's reputation. This may mean that anyone involved who bears ill will towards another person involved in the complaint should consider whether he or she could fairly and objectively deal with the matter. If not, this should be brought to the attention of the University. No complaint should be made, and no report should be compiled, which contains material that the complainant or the investigator believes to be untrue. An investigator who looks into a complaint of harassment or discrimination fairly and thoroughly, limiting his or her investigation to matters of relevance to the complaint and adhering to the confidentiality principle, will be acting in good faith. Information on relevant legislation and legal issues is provided in Appendix B. CONTEXT The context within which the resolution of complaints concerning harassment, bullying or discrimination occurs is the relevant legislation (Refer Appendix B Legal Issues) and the University s Harassment, Bullying & Discrimination policy. (Refer Appendix H Harassment, Bullying and Discrimination Policy.) Other related policies and procedures such as Equal Employment Opportunity Policy, and Inclusive Practices for People with Disabilities Policy also provide relevant context. (Refer University policy library) The Harassment, Bullying and Discrimination policy is designed to provide an overview of the University s approach to managing allegations of harassment, bullying and discrimination and applies to all staff, students and visitors at the University including contractors who permanently work on, or occasionally work on, the University s campuses. The policy uses the attributes set out in the Queensland Anti-Discrimination Act (1991) as the basis for grounds for a complaint. (Refer to the Qld Anti-Discrimination Act in Appendix B Legal Issues) 6

7 Whilst workplace bullying is grounds for complaint under University policy, it is not grounds for complaint under the Qld Anti-Discrimination Act. However under the Qld Workplace Health and Safety Act 1995, and more specifically, the Department of Industrial Relation s Prevention of Workplace Harassment Code of Practice 2004 the University has an obligation to provide a safe workplace, which includes identifying and managing exposure to the risk of death, injury or illness created by workplace harassment. The University s aim is to eliminate harassment, bullying and unlawful discrimination from its campuses. It strives to achieve this through: Encouraging cooperative and harmonious work environments Those in positions of authority demonstrating exemplary behaviour and encouraging appropriate behaviour in others Providing appropriate and effective processes, structures and resources to prevent and address issues of harassment, bullying and discrimination Education Effective and confidential addressing of complaints The emphasis in responding to a complaint or allegation of harassment, bullying or discrimination should be firmly placed on fair and efficient resolution, not retribution or retaliation or punishment. The resolution of complaints informally, where practicable, is the preferred and most effective method of complaint resolution. There are always at least two perspectives to a complaint and opportunities for these to be aired need to be provided. This needs to be done without prejudging, forming conclusions without all the facts, or predetermining any outcomes. Informal complaint resolution processes can be effective. They are voluntary, confidential, are conducted with goodwill, involve the minimal number of people, and allow the parties to explore options and make their own decisions about how to resolve a complaint rather than having a third party making and enforcing a decision. Informal processes are not about blaming or finding fault; they are about attempting to resolve the complaint. In many instances the relative informality encourages people to be more honest and to feel that they do not have to defend or justify themselves as they may have to in a more formal investigation process. They are not, however, appropriate in all instances. Resolution through senior management intervention and/or mediation is appropriate when: Confidentiality of negotiations or outcome is important Strict application of the law will not necessarily solve the problem Creative solutions are required There is relative equality of bargaining power between the parties Time and cost are important considerations An investigation has already been completed. A more formal process of investigation is appropriate if: There has been a clear breach of statute or policy Public scrutiny of the issue is required Violence is threatened or perceived Gross inequality of bargaining power exists between the parties Parties are using the process for an ulterior motive There is unwillingness of parties to enter into good faith negotiations. (Reference Workplace Business Pty Ltd) 7

8 With these principles in mind the complaint resolution procedure sets out a broad approach to handling a complaint or allegation. It establishes four steps but these are not mandatory and do not have to be followed sequentially. Depending on circumstances the complaint resolution process may begin at any of the steps. (Refer diagram page 9) Steps 1 & 2 have an emphasis on attempting to resolve a complaint or allegation in an informal manner through discussion and mediation. Steps 3 & 4 involve formal investigations of a written complaint by either the University or an external organisation such as the Qld Anti-Discrimination Commission. Within these processes the complainant s issues guide the complaint resolution process. This is not unusual; the processes used by external organisations such as the Qld Anti- Discrimination Commission are complainant driven. It is the complainant who raises the issue, or lodges the complaint, and decides whether options presented are reasonable to resolve the complaint. This is not to say that respondents have no say as many decisions require mutual agreement, eg mediation cannot be conducted unless there is mutual agreement between the respondent and the complainant. The Relevant Senior office is the overall decision-maker, and determines whether and how a complaint resolution process will proceed. (The procedures are elaborated in Appendix E) SUPPORT PERSONS At all stages in this process the parties are entitled to have a support person present. Support people may be contact officers, friends, colleagues or union representatives. They are not advocates and should not advocate on behalf of the complainant or respondent. 8

9 9

10 SECTION 2 ROLES 10

11 SECTION 2 ROLES Contact officers Contact Officers are University staff members who have undertaken training in issues related to harassment, bullying and discrimination. Contact Officers are often the first point of contact for people who feel they may have an issue with harassment, bullying or discrimination. Their role is to provide information and support to staff or students who feel that they may have been harassed, bullied, or discriminated against, or who are respondents to a complaint, and who want to know what options are available to them. Any staff member or any student may contact a Contact Officer and discuss their concerns with them. A full list of the University Contact Officer network is on the Equity web site at - Harassment & Discrimination The role of the Contact Officer in the complaint resolution process is to provide information and to assist people through the process. This can be to either the complainant (person making complaint) or respondent (someone responding to a complaint). Their role is to listen to the person, provide information about what can be done and the options that are available and provide assistance to carry out the option that is decided upon. The Contact Officer role does not include advocacy. Contact Officers do not investigate complaints, nor can they raise issues on behalf of a complainant. If contacted by someone who believes they are experiencing harassment, bullying or discrimination or a respondent to a complaint the suggested processes when dealing with an initial complaint are contained in Appendix C, Contact Officers - Interviews. An explanation of the procedure is in Appendix E. Checklists are provided in Appendix F. 11

12 Senior Managers* * Senior Managers is the term used to describe those academic and administrative staff that have positions of delegated authority as well as line management of staff. Throughout this section the generic term managers has been used for brevity. As a general principle, ANY staff member who is approached to assist in resolving an issue of alleged harassment, bullying or discrimination should act, either directly if it is within their sphere of responsibility, or by directing the person to the most appropriate manager. General responsibilities The University has put in place a number of policies to prevent harassment, bullying and discrimination such as Equal Employment Opportunity Policy and the Code of Conduct as well as the policy on Harassment, Bullying and Discrimination. Managers are expected to show leadership in encouraging a positive workplace and learning environment. They do not need to wait for a complaint to be made to act. If something is observed that is in breach of any University policies, managers should act to stop it. Options available are: Discuss the issue with the person whose behaviour is of concern, Use the observations to describe, to that person, the behaviour that could be giving offence, Advise that person that the behaviour could be offensive and that it is not appropriate behaviour in the workplace, Implement a training program for staff or students. Sometimes a person wants something done about behaviour but is not prepared to make a complaint. There are many possible reasons for this. If this is the case an appraisal of what is occurring is appropriate. If the behaviour has not been observed directly or a complaint from a person who is the direct recipient of alleged unwelcome behaviour has not been received, a very circumspect approach is required. If the complainant does not wish to be identified, or a complaint is anonymous, the procedures for resolving a complaint cannot be used. Direct action cannot be taken on hearsay, rumour or third party comments. Anonymous complaints should be ignored, unless there are other clear indicators that there may be substance to them. If a complainant has identified himself or herself to a manager, but does not wish the respondent to know their identity, then only indirect actions, such as general information or training sessions, may be undertaken. Not everything that happens in a workplace that is negative is necessarily harassment or discrimination. There are genuine cases of people not getting along. This does not mean that inappropriate behaviour based on disliking someone is acceptable. The role of the manager is to be able to distinguish between appropriate and inappropriate behaviour. The reason for the behaviour or intent of the person is of little relevance. Behaviour that is inappropriate in the work or study environment is always inappropriate and should be treated as such. 12

13 The University s policies and procedures set out what is appropriate behaviour. These include the Code of Conduct and Student Charter. Advice about dealing with inappropriate and unacceptable behaviour is available from Group HR staff, specialised staff within the Office of Human Resource Management, or Student Equity Services. Leadership which is clear about University expectations is the best approach to ensuring that all staff and students can work and study in an environment free of any harassment, discrimination or bullying. Managers and supervisors at all levels will: Ensure that relationships between staff and students are based on University protocols, Become familiar with the University's policy and procedures on harassment, bullying and discrimination and the Code of Conduct, (refer to policy library at www62.gu.edu.au/policylibrary.nsf for copies of policies and procedures) Make it clear to staff and students that harassment, bullying and discrimination will not be tolerated in the workplace, Ensure that all complaints of harassment, bullying and discrimination are acted upon, Take action if it becomes apparent that harassment, bullying or discrimination is occurring in the workplace even if a complaint has not been made, Take seriously any complaints of victimisation which may follow the making of a complaint of harassment, bullying or discrimination, Monitor their own behaviour to ensure that they do not harass, bully or discriminate against staff or students, Seek advice from specialist staff in relation to complaints received in the workplace for which they are responsible. Dealing with complaints The policy and procedures on Harassment, Bullying and Discrimination have been established to allow resolution of complaints. Managers have a role in handling issues of harassment and discrimination and will: Respect and give prompt attention to complaints, Assist complainants to evaluate their options and choose a strategy for addressing the issue, Discuss the complaint with respondents if appropriate, Attempt to resolve the complaint with the parties concerned if appropriate, Clarify appropriate standards of behaviour, Ensure that a complaint is dealt with as quickly as possible. To do all of this, managers should be familiar with the concepts within this policy. The equity website ( contains valuable information that may assist in developing an understanding of the issues this policy addresses. In particular the EO On-line program works through the issues and builds an understanding and knowledge of harassment, bullying and discrimination. 13

14 The aim of handling a complaint is to ensure that: There is no recurrence of any unacceptable or distressing behaviour by the respondent, If the complainant has suffered disadvantage as a consequence of harassment and discrimination or because they resisted harassment and discrimination, the situation is redressed to the complainant's satisfaction as far as possible, There are no reprisals for making a complaint in good faith or future retribution for having offended (this excludes sanctions that may be recommended as an outcome of an investigation), An appropriate review mechanism is established, All parties are satisfied that their point of view has been listened to and respected, and Contributing issues in the workplace are addressed. A complaint will reach managers when: a complainant feels more comfortable approaching the manager of a person they believe has harassed, bullied or discriminated against them, rather than dealing directly with the respondent or, a complainant has attempted to resolve the issue themselves, has been unsuccessful in doing so and has chosen to refer the complaint to the manager. Actions to Take 1. Meeting with Complainant Discuss the complaint with the complainant. (Additional information is provided in the following Appendices: Appendix C Interviews Contact Officers; Appendix D Interviews Managers; Appendix E explains the procedure for resolution of staff and student complaints of harassment, bullying and discrimination; Appendix H sets out the Policy on Harassment, Bullying & Discrimination and Procedures for the Resolution of complaints). During the initial interview with the complainant seek information from them including: Who the allegations are against, What the alleged behaviour is, When the alleged behaviour occurred, Where it occurred, How the complainant felt, and how it affected them, What the complainant wants as an outcome of the complaint process and how this might be achieved. Also check whether there is an immediate need to make interim changes to reduce the continuing impact of the situation, eg through the re-allocation of student assessment responsibilities, relocation of work space. Once the details of a complaint are known a decision about whether or not there is any conflict of interest needs to be made. One of the philosophies of natural justice (refer Legal Issues p 5) is that the person looking into a complaint should be fair and without any actual or perceived bias. If there is a conflict of interest the complaint must be referred to the Relevant Senior Officer. 14

15 In addition, managers must determine whether there are sufficient grounds for the complaint. An assessment should be made that the complaint concerns allegations of harassment, bullying or discrimination. (Refer definitions in Appendix A) If the complaint does not fall within the definitions of the behaviours with which this policy is concerned determine whether the behaviour complained of is inappropriate and if so determine what other procedure may be used by the complainant, (eg the Student Grievance and Appeals policy.) Having made this determination the complainant should be contacted, an explanation given and any alternatives the person may have explored. 2. Meeting with Respondent Having decided that the complaint can be dealt with by using this process arrangements should be made to discuss the complaint with the respondent. The respondent should be aware of the allegations that have been made before the meeting. This is best done by providing the respondent with information that a complaint has been received, the person(s) from whom the complaint originated, and a general outline of the nature of the allegations. If the complaint is in writing a written summary of the allegations can be provided to the respondent. Unless the complaint is written as a statement of fact it is not usually appropriate to provide the respondent with the original written documentation from a complainant. Many documents contain personal and emotive comments about the respondent which are neither relevant nor helpful to the process of seeking to achieve resolution of the actual allegations. The complainant should be informed of actions taken and planned, giving a timeframe for this to happen. The interview with the respondent should seek: Responses to allegations. Responses to what the complainant wants as outcomes and how they want to achieve them. Ideas about how they think the complaint could be resolved. 3. After interviews Once managers have both the complaint and response and know the views of the parties they should see whether there are areas of agreement and room for compromises that are acceptable to both parties. This may involve engaging the services of a mediator if mediation has not been attempted, re-engaging the mediator if mediation has been previously attempted, or negotiating between the two people involved. (Refer p20 for more detail on mediation). The aim of this step in the process is for managers to attempt to resolve complaints informally by negotiating with the parties or through mediation. This stage is not a formal investigation into the complaint and there should not be any attempt to find guilt or innocence. Managers are not advocates for either party so being seen to be and actually being neutral is important. If there is a belief that the complaint involves misconduct the complaint should be referred to the relevant Head of School or Element and the Director of Human Resources. (Refer p19 for further information on misconduct) 15

16 A further consideration is whether the complainant wants something from the University eg a refund of fees, compensation, or a change to a policy or procedure. Managers should act within their authority. If what is wanted is outside of this there will need to be discussions about the complaint and negotiations with someone not directly associated with it. Records need to be kept. These can be a simple file note recording details of meetings such as who was met, when the meeting was, what was discussed, the outcomes of the meeting, and actions undertaken. These may be required if the complaint becomes a formal one. These should be kept in a confidential area and at the end of the process they should be lodged with the Office of HRM (for staff matters) or the Director Student Services (for student only matters). These will be kept confidential. Support is available from Group HRM staff or specialist staff within the Office of Human Resource Management or Student Equity Services. For example they will be able to help develop an action plan to deal effectively with a complaint. Checklists are provided at Appendix F. 16

17 Relevant Senior Officers (RSO) Accountability for ensuring that equal employment opportunity and student access and equity are implemented at element level rests with senior managers. Their leadership role includes responsibility for ensuring that harassment, bullying and discrimination are prevented or dealt with effectively and promptly when they occur. The Relevant Senior Officer is the Pro-Vice Chancellor or Deputy Vice-Chancellor that heads the element in which the complainant is located. A complainant will approach the RSO where previous attempts to resolve the complaint informally have been unsuccessful or the complainant has decided to lodge a written complaint as a starting point. An investigation does not automatically follow the receipt of a written complaint. The RSO has the discretion to determine whether the matter will proceed to formal investigation, based on the preliminary consideration of the grounds and context of the complaint. (Refer p7) In addition, it is necessary to consider whether the complained of behaviour is misconduct. Where a prima facie case is established that the allegations may constitute misconduct action that may lead to disciplinary procedures may be recommended and complaint resolution procedures will cease. (Refer p19) Assessing a complaint In assessing whether a complaint is to proceed or not, an assessment is made on the merits of the case by the RSO. This is based on: Any records kept by those who have attempted to resolve the matter informally, Whether or not the complaint falls within the grounds for making a complaint under this policy, The written complaint, and Information from any interviews conducted. This initial assessment is for the RSO to make a decision about whether or not to proceed with the complaint. Questions: Is the complaint based on behaviour that could be considered to be harassment (including sexual harassment), discrimination or bullying as described in the definition section? If the complainant is alleging discrimination or harassment is the behaviour based on one of the attributes in the definitions of discrimination or harassment? (See Appendix A) Is the complaint frivolous or vexatious as described in the definitions section? (See p 25) If it is determined that the complaint should not proceed an explanation of how and why this decision was reached should be provided to the complainant and the respondent informed accordingly. If the complaint is to proceed, several options are available: Refer the complaint back to the Head of Element if this is a reasonable action that has been overlooked in the process, Attempt mediation at this level if this has not been done, Proceed to a formal investigation. 17

18 Mediation Options should be discussed with the complainant (refer Appendix C and Appendix E Procedure Explained) and if the complainant agrees to mediation, with the respondent. If both the complainant and the respondent agree to mediation one of the University s trained conciliators or an external mediator should be engaged. If possible this should occur within 10 working days. (Group HR staff can assist in sourcing suitable mediators.) At the completion of the mediation the mediator will provide the RSO and the parties with a written summary of any outcomes including any agreements entered into. If this concludes the matter all relevant material is forwarded to the Office of Human Resources for staff matters or the Director Student Services for student only matters. These will be stored in a confidential file. Formal Investigation Where informal methods of resolving the matter are not effective or are inappropriate, and the grounds and context of the complaint require further investigation a formal process will be instigated if this is what the complainant requests. The matter may be referred to a complaint investigation committee. Help in coordinating this process should be sought from either the Group HR Manager, for staff related matters, the Principal Adviser - Equity, Diversity and Policy Implementation for matters that are complex and involve staff and/or staff and students, or Student Equity Services for matters solely involving students. A complaint investigation committee usually comprises two people, one senior officer appointed from the University and one nominee of an appropriate union or similar body. In some instances one person may be appointed to investigate or an external investigator may be appointed. This would be done when specific expertise is required, eg in relation to specific aspects of anti-discrimination legislation. Once the complaint investigation committee has prepared its report and made recommendations it is the RSO s responsibility to make a decision based on that. Both the complainant and the respondent are to be informed of the decision in writing. If any actions are required, a reasonable time should be established and then monitored and followed up until everything has been completed. RSO s are to ensure that the matter is dealt with as quickly as possible to minimise prolonged stress to individuals, and time and cost to the University. At the conclusion it is important that, whatever the outcome, the complainant and respondent understand what the outcome is, how it was reached and what is expected of them. Irrespective of the outcome, the RSO should facilitate the negotiation of agreed changes where the parties have an ongoing professional relationship. The outcomes should include: A guarantee that any offending behaviour will stop, An assurance that reprisals for making the complaint, or retribution for having offended, will not be tolerated, An agreed code of behaviour which takes into account the specific needs and feelings of each individual involved, 18

19 A procedure for monitoring the situation so that each individual will feel supported and protected. Assistance to either party to get access to counselling or other support services if they are needed should be provided. Where the complaint is unsubstantiated there may be a need to monitor the workplace directly. The lodging of a complaint, even if ultimately unsubstantiated, may indicate underlying issues in the workplace. Preventative strategies should be introduced, or reinforced, so that everyone is aware of the standard of behaviour required of them. A checklist is provided in Appendix F. MISCONDUCT Misconduct is defined in the University s Academic and General Staff Certified Agreements. Misconduct means misbehaviour of a kind which constitutes an impediment to the carrying out of the employee s duties or to other employees carrying out their duties. Serious Misconduct shall mean: 1. Serious misbehaviour of a kind which constitutes a serious impediment to the carrying out of an employee s duties or to another employee carrying out their duties; or 2. Serious dereliction of the duties required of the employee s office; or 3. Conviction by a court of an offence or judgement entered in a court or tribunal. Behaviour that may constitute misconduct will be investigated according to procedures specifically related to this, and any investigations that may be occurring in relation to allegations of harassment, bullying or discrimination will be incorporated into a single misconduct investigation. Where a manager or RSO believes that allegations of harassment, bullying or discrimination present a prima facie case of misconduct advice should be sought from the Group HR Manager or the Associate Director, Employment Strategies. 19

20 Mediators A mediator acts as a neutral facilitator to help the parties to a complaint identify issues, explore possible ways to resolve a complaint and help them reach a mutually satisfactory outcome. They facilitate the workable resolution of harassment, discrimination and bullying issues. Mediators do not impose settlements nor can they force anyone to agree to something they do not want to. Mediation involves meeting with the parties to attempt to resolve the dispute. This usually occurs with all parties to a complaint present with the mediator, but occasionally the mediator may first meet with individuals. Mediation is only appropriate where both the complainant and respondent are willing to participate and do so with goodwill. Its purpose is to clarify the behaviour that has caused offence and to explore strategies that will resolve the issues. Where senior managers or relevant senior officers feel that mediation may be a viable option for achieving resolution of a complaint this should be explored with the complainant and, if they agree, with the respondent. However, there is no requirement that mediation be used to resolve issues, and neither party should feel obliged to participate in mediation processes if they feel uncomfortable doing so. Mediation is conducted in absolute confidence. This includes the mediator and those present at the mediation. Statements put forward by parties involved in mediation shall not be used or made available in any other University forum. In a formal tribunal hearing the Anti- Discrimination or Industrial Relations Commissions may subpoena a mediator to give evidence that may result in the disclosure of confidential information. Mediation aims to achieve: A guarantee that the offending behaviour will stop, An assurance that reprisals for making the complaint, or retribution for having offended, will not be tolerated, An agreed code of behaviour which takes into account the specific needs and feelings of each individual involved, A procedure for monitoring the situation so that each individual will feel supported and protected, Satisfaction of all parties that their point of view has been listened to and respected. If engaged in Step 3 Formal Investigation mediators will provide a written summary of the outcomes of the mediation and any agreements entered into to the complainant, respondent and the RSO, and, with the agreement of the complainant and respondent, to any other parties that have been directly involved in the resolution of the complaint. Further support and follow-up Mediators may assist either party to get access to counselling or other support services if they are needed. There may also be an ongoing monitoring process perhaps by meeting with the parties again at a specified time. 20

21 Complaint Investigation Committee/ Investigator The role of the complaint investigation committee or investigator is to conduct a thorough, fair and objective investigation and prepare a report with recommendations based on the findings of the investigation to assist the Relevant Senior Officer make a determination on the matter. The committee is usually established with the assistance of the Office of Human Resource Management, and the Principal Adviser Equity, Diversity & Policy Implementation or Student Equity Services coordinate most investigation processes. The investigation process is characterised by a detailed examination of the information available including that recorded at previous steps. It is guided by the principles of natural justice. (Refer p5) Investigations of this nature are invariably complex, and involve considerable investment of time and emotional energy. While investigation committees and individual investigators try to reach their conclusions as quickly as possible, sometimes events occur that cause delays to the process. When this happens the reasons for the delay will be communicated to all parties concerned. At the conclusion of an investigation an assessment will be made regarding the reliability and validity of information gathered and findings made based on the balance of probabilities, eg corroboration and consistency of the data. The investigator s role is to collect, collate and assess evidence to determine whether or not, on the balance of probabilities, the complaint can be substantiated. It is not about proving one person right and one wrong. The investigation is not a disciplinary process. However, should there be a prima facie case established that the allegations may constitute misconduct under the University s policies or statutes, actions that may lead to disciplinary procedures may be recommended. The basic objectives in investigating a complaint are: To obtain the full, specific details of the complaint, To research the complaint, observing the rules of natural justice (refer p5), To make a recommendation on whether the complaint is substantiated after the investigation is complete, Where appropriate, to recommend what outcomes are most appropriate for the complainant and the person whose behaviour was investigated. At the completion of an investigation a report is written and recommendations about whether the complaint is substantiated or not are made. Records are kept throughout the process. All investigation reports and accompanying material should be forwarded to the Office of Human Resource Management (HRM) for staff related matters or Director Student Services for matters that relate solely to students. These will be stored in a confidential file. 21

22 SECTION 3 APPENDICES 22

23 APPENDIX A Definitions Harassment Harassment is defined in the policy as behaviour that is directed at an individual or group of students or staff that is: offensive, belittling, humiliating, intimidating or threatening; and unwelcome and unsolicited; and is of the type that - Is usually unreciprocated; - Can usually be expected to be repeated; - Makes the work or study environment unpleasant, humiliating or intimidating for the individual or group; - Can make it difficult for effective work or study to be done; and this occurs in circumstances where a reasonable person would have expected that the behaviour was going to be offensive, humiliating or intimidating. Harassment may be based on an attribute listed below. Discrimination Direct discrimination occurs when a person is treated less favourably than another person because of certain attributes, and indirect discrimination occurs when a requirement that is the same for everyone has an unfair effect on some people because of an attribute. The attributes that are unlawful areas of discrimination under the Queensland Anti- Discrimination Act (1991) are: (a) sex; (b) relationship status; (c) pregnancy; (d) parental status; (e) breastfeeding; (f) age; (g) race; (h) impairment; (i) religious belief or religious activity; (j) political belief or activity; (k) trade union activity; (l) lawful sexual activity; (m) gender identity; (n) sexuality; (o) family responsibilities; (p) association with, or relation to, a person identified on the basis of any of the above attributes. Further information is available at the Anti-Discrimination Commission Queensland - website 23

24 Bullying Bullying behaviour is described as the repeated less favourable treatment of a person by another or others in the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes behaviour that intimidates, offends, degrades or humiliates. It is usually characterised by a pattern of abuse of workers or co-workers, and may include: yelling, screaming, abuse, offensive language, insults, inappropriate comments about a person s appearance, life or lifestyle, slandering a worker or his/her family belittling opinions, constant criticism or malicious comments isolating workers from normal work interaction, training and development or career opportunities creating unnecessary pressure by setting impossible deadlines or severely overloading someone under work, creating a feeling of uselessness undermining work performance, deliberately withholding work-related information or resources, or supplying incorrect information unexplained job changes, meaningless tasks, tasks beyond a person s skills, failure to give credit where due tampering with a worker s personal effects or work equipment teasing or regularly being made the brunt of pranks/practical jokes displaying written or pictorial material which degrades or offends a worker or group of workers unreasonable "administrative sanctions" e.g. undue delay in processing applications for training, leave or payment of wages starting of rumours about the person persistent comments that could make a worker feel that their job security is under threat Bullying does not include reasonable, legitimate management actions such as disciplinary or performance management procedures as long as these procedures are not used to intimidate, offend, degrade or humiliate. Anyone who believes that they are experiencing workplace bullying should be encouraged to keep a diary of events which includes detail of the incidents and names of people willing to support the claims made. Sexual Harassment In its most general sense, sexual harassment is any behaviour of a sexual nature, which is unwelcome. The Queensland Anti-Discrimination Act (1991) makes sexual harassment unlawful. Sexual harassment may involve a single incident or a series of incidents. There does not necessarily have to be continuing sexual conduct before the behaviour may be regarded as sexual harassment. 24

25 The following examples illustrate the wide range of behaviours, which could be labelled sexual harassment: physical contact - eg touching; patting; pinching; kissing or embracing someone; sexual assault and rape. verbal comments - eg innuendo; smutty jokes; suggestive comments about someone's appearance or body; persistently inviting someone out; questions about a person's private life; requests for sexual favours. nonverbal actions - eg leers; stares; displays of sexually explicit material; offensive body and hand movements; suggestive letters and drawings, including ; indecent exposure. In defining and identifying sexual harassment, the intent of the person whose behaviour caused offence is largely immaterial, as it is the effect of their behaviour that is relevant. What constitutes sexual harassment to one person may be acceptable and inoffensive to another. Different social or cultural backgrounds may lead people to perceive the same conduct differently. The person who decides whether behaviours are unwelcome is the person 'on the receiving end'. If behaviour is unwelcome and is sexually oriented, and occurs in circumstances where a reasonable person would have anticipated the possibility that the other person would have been offended or intimidated by the conduct, then it is sexual harassment. Victimisation Victimisation occurs when a person does or threatens to do something that will be detrimental to another person because they have lodged a complaint, are considering lodging a complaint or they are or will be involved in the complaint resolution process. Victimisation usually involves retaliation or retribution and is therefore contrary to the policy s emphasis of responding to complaints fairly and efficiently. Complaints of victimisation will be treated in the same way as other complaints. Frivolous Complaints A frivolous matter is a matter that is trivial, extremely far fetched, or not worth serious attention. Vexatious Complaints A vexatious matter is a matter that is reported solely to cause inconvenience to a person or the organisation and is devoid of merit. Consensual Relationships Where a University staff member has or develops close relationships with staff and students who could be affected by the exercise of their authority, they are responsible for ensuring that other work and academic processes are maintained on a professional basis. If a sexual or other intense emotional relationship is formed, the staff member concerned is responsible for ensuring that the relationship is based on true consent. The circumstances that are relevant in making this assessment include: 25

26 the age of the other person; the sex of the other person; the race of the other person; any impairment that the other person has; the relationship that exists between the parties (eg manager/subordinate, supervisor/student, lecturer/student, convener/sessional staff member); any other relevant circumstances that may affect the other person's ability to make a free choice and give true consent. The University s Code of Conduct and Guidelines for Preserving Professional Relationships also deal with relationships within the University. These should also be referred to when questions of relationships arise and people should inform and seek advice from their managers. 26

27 APPENDIX B Legal Issues Harassment and discrimination is unlawful under State and Commonwealth legislation, which is summarised below. The full text of the relevant legislation is available on the Equity website ( Anti-Discrimination Act 1991 (Queensland) This Queensland Government legislation states that a person must not sexually harass another person. It is also unlawful to discriminate against a person on the basis of sex, sexuality, gender identity, lawful sexual activity as a sex worker, relationship status, parental status, family responsibilities, pregnancy, breastfeeding, age, race, impairment, religious belief or activity, trade union activity, political belief or activity and association with a person identified by one of these attributes. Harassment is unlawful when it occurs in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. The circumstances that are relevant in making this assessment include: the age of the other person; the sex of the other person; the race of the other person; any impairment that the other person has; the relationship that exists between the parties; and any other relevant circumstances. (Chapter 3, part 2) In addition the Act makes racial, religious, sexuality and sexual identity vilification unlawful. Vilification is described by the Qld Anti-Discrimination Commission as a public act of racial, religious, sexuality or gender identification hatred. Sex Discrimination Act 1984 (Commonwealth) The Commonwealth Sex Discrimination Act of 1984 makes sexual harassment unlawful where it involves harassment of a work colleague, someone seeking employment with the same employer or someone working on the same premises although they may have a different employer. It also states that it is unlawful for a: member of the staff of an educational institution to sexually harass a person who is a student at the institution or a person who is seeking to become a student at the institution; and person who is an adult student at an educational institution to sexually harass a person who is an adult student at the institution or a member of staff of the institution. (Division 3) 27

28 Racial Discrimination Act 1975 (Commonwealth) Under the Commonwealth Racial Discrimination Act 1975, it is unlawful to discriminate against a person based on their race, colour, descent, national or ethnic origin. Disability Discrimination Act 1992 (Commonwealth) The Commonwealth Disability Discrimination Act 1992 makes discrimination on the basis of a person s disability unlawful. A disability can be physical, intellectual, psychiatric, sensory, and neurological. It also includes learning disabilities, physical disfigurement and the presence in the body of disease-causing organism. Harassment of an employee, a work colleague, a person seeking employment, a contract worker or a person seeking to become a contract worker unlawful where it is in relation to their disability or the disability of an associate. Similarly, harassment of a student or person seeking admission as a student by a staff member of the University is unlawful where the harassment relates to their disability or the disability of an associate. Legal Action The University is potentially liable in defamation and other legal actions arising out of harassment, bullying and discrimination complaints. Any action taken honestly and reasonably will not attract liability. (Refer page 4 Legal Issues) Vicarious liability Both State and Commonwealth law provide that University employees or agents can find the University vicariously liable for harassment and discrimination. Employees who contravene the required standards may be personally liable for damages. Where the University is found to be vicariously liable, the funds involved are paid by the Element concerned. Workplace Health and Safety Act and Workers Compensation and Rehabilitation Act Under the Workplace Health and Safety Act employers have an obligation to provide a healthy and safe workplace. The Workers Compensation and Rehabilitation Act provides for a scheme that provides compensation and rehabilitation to workers who have been injured whilst at work. An employee who has been injured as a result of workplace harassment may be able to lodge a claim for workers compensation. In addition the injured employee may be able to sue the University for personal injuries. Liability for compensation. The outcome of harassment or discrimination complaints can include a requirement to pay compensation for loss or damage suffered as a result. 28