Discrimination and Harassment: Policy and Procedure

Intent

To assist James Cook University to meet its responsibilities and obligations in employment and education under State and Federal anti-discrimination and equal opportunity laws; to provide information and clear guidelines for management, staff and students on expected standards of interpersonal interaction; and to provide mechanisms for dealing with breaches of standards, policies and laws.

Scope

Management, staff and students while on campus or engaged in any University-related activity.

Key Objectives

To ensure that JCU complies with relevant laws and standards of corporate citizenship and to provide a consistent means of dealing with breaches.

Definitions

Refer to section 3.

Policy and Procedures

1. POLICY

1.1 James Cook University recognises its responsibilities and obligations in employment and education under State and Federal anti-discrimination and equal opportunity laws. As an educational institution and as an employer, James Cook University is committed to providing an environment for effective work and study, free from unlawful and unacceptable discrimination and harassment.

1.2 The procedures set out below may be used to define and resolve complaints of direct and indirect discrimination and of harassment on the grounds recognised in relevant State and Federal laws and in University policy. These grounds include-

  • sex or gender, and sexual harassment;

  • marital status, pregnancy, potential pregnancy, parental status and family responsibility;

  • sexual preference, sexuality or gender identity;

  • disability, impairment or handicap.

  • race, colour, national or ethnic origin, nationality, ethnicity, descent or ancestry, immigration;

  • age;

  • religious or political belief or activity;

  • trade union activity;

  • personal association with or relation to any person who is identified on the basis of any of the above attributes;

  • any other ground which the Deputy Vice-Chancellor, University Services & Registrar, on the advice of the Manager - Equal Opportunity, determines to be a basis of discriminatory practice.

A regularly updated list of grounds for complaint under State and Federal law is maintained at http://www.antidiscrimination.gov.au/

1.3 Definitions and descriptions of various forms of harassment are included in the Further Information, which forms part of this policy.

1.4 All persons associated with the implementation of these procedures shall work towards increasing awareness in the University community of ethical concerns in interpersonal relationships and the rights of individuals to freedom from discrimination and harassment.

2.PRINCIPLES

The following principles shall obtain throughout the implementation of any grievance or complainant procedure based on discrimination, and shall be observed by all responsible persons.

2.1 Confidentiality must be maintained to the greatest possible extent, with communication limited to persons to whom disclosure is consistent with official position and responsibility, or with specific responsibility to assist in the resolution of the grievance. (The University’s responsibility to use or to release confidential information in compliance with legal requirements is discussed under Section 7. below.)

2.2 The principles of procedural fairness shall apply at all stages of a complaint resolution process. Persons responsible for investigating and resolving complaints have a duty not to be affected by bias or conflict of interest, and must act fairly and impartially. Each party shall be given a fair opportunity to know the case against her or him and to be heard.

2.3 Complaints shall be investigated promptly involving as few people as possible. Parties to a complaint shall be entitled to receive advice and support as appropriate, and to be kept informed of the progress of a complaint.

2.4 The preferred method of resolution shall be by discussion, raising awareness, mediation and a process of conciliation which aims not to make a finding or to allocate blame but to assist the parties to reach agreement on an acceptable outcome.

2.5 It is recognised that conciliation may not be appropriate if a party to a complaint holds a reasonable belief that discussion is likely to provoke victimisation, further incidents of harassment, or unnecessary distress.

2.6 A process for formal investigation of grievances shall be available for cases where conciliation is inappropriate or has proved unsatisfactory.

2.7 Staff and students using these procedures must not be victimised on that account and have the right to take action under these procedures if they believe that victimisation has occurred.

2.8 Appropriate steps shall be taken to ensure harmonious working and academic relationships during and after the procedures.

2.9 All staff and students of the University shall be informed of the policy and procedures and that they may consult appointed Discrimination Advisers.

2.10 Nothing in this document shall pre-empt the right of the individual to seek appropriate legal redress outside the University.

2.11 Frivolous or vexatious complaints will not be tolerated and may result in disciplinary action.

3.DEFINITIONS AND COVERAGE

3.1 In these policies and procedures-

  • the complainant is the person who claims to be the subject of discrimination or harassment and who may complain about the experience;

  • the respondent is the person who is alleged to have acted in a manner which causes the discrimination or harassment and is the person complained about;

  • the client is the person making an enquiry about discrimination or harassment. The client may become a complainant or respondent;

  • mediation occurs when a third party hears each side of the grievance separately and acts as an intermediary with the aim of reaching an agreed solution. It is the duty of the mediator to manage the power relationship of the parties to the complaint;

  • conciliation occurs when a third party brings together the two other parties to a grievance, with a view to stating their views in the presence of the other party, and in reachingresolutionand agreement. To ensure that the agreement does not break down, a monitoring process must be included.

3.2 Discrimination is any practice that makes distinctions between individuals or groups so as to disadvantage some people and advantage others on the basis of an attribute (such as sex, race, religion), or on the basis of characteristics generally attributed to persons with that attribute (eg. being female, Aboriginal etc).

3.3 Direct discrimination directly excludes a person from a benefit (such as a job, or admission to a course) on the basis of a personal characteristic irrelevant to the situation (eg. excluding someone from a job or course because of their marital status).

3.4 Indirect discrimination refers to a policy or practice that appears to be neutral, or the same for everyone, but which, in operation, results in a particular person or group being adversely affected, or excluded from consideration. Indirect discrimination is often unintentional. In order to constitute indirect discrimination, the particular policy or practice must be unreasonable in the circumstances. For example an employment benefit that is permitted only to full-time staff may well be judged as discriminatory to women (unless it could be shown that full-time work is an essential condition), because many more women than men hold less than full-time jobs.

3.5 Harassment is behaviour that causes concern or distress to the recipient, whether staff or student, and is believed by the recipient to be affecting work or progress. It may arise from an act, a decision, or an omission which is perceived by the person whom it affects as wrong, unjust, unfair or discriminatory. It may be a single incident or a series of incidents. Harassment may consist of offensive, abusive, belittling, humiliating threatening or intimidating behaviour directed at a person (or a group of people) because of some real or perceived attribute.

3.6 Consequences of discrimination and harassment for the University may include-

  • poor public image;

  • low morale and productivity;

  • excessive absenteeism;

  • costly staff turnover;

  • withdrawal by students from studies;

  • expensive litigation;

  • the necessity for financial compensation.

3.7 Details of several specific forms of harassment, viz. sexual harassment, racial harassment, disability-based harassment and generalised workplace harassment, are shown in the Further Information which form part of these policies and procedures.

3.8 All persons are covered by laws against harassment. Sexual and other forms of harassment may occur among colleagues or co-workers and in supervisor-subordinate, subordinate-supervisor, staff-student, student-staff and student-student relationships. Agents, contract workers and persons who are seeking employment or enrolment may also neither harass nor be harassed. All kinds of relationships in employment and education are covered. Other areas of relevance to the University in which discrimination and harassment are prohibited include goods and services, accommodation and clubs.

3.9 If the person against whom the allegations is made is not a staff member or student of the University, the University may assist the aggrieved party to pursue a complaint through appropriate channels. The decision on the appropriateness of University intervention or assistance shall be made by the Deputy Vice-Chancellor, University Services & Registrar on the advice of the Director, Equity, Counselling & Careers.

3.10 Harassment most frequently occurs when there is a real or perceived difference in power between the parties concerned - that is, when a person who is in a position to affect another's employment, career, academic results, or acceptance in a group (such as a college or residence) uses that authority explicitly or implicitly to gain, or to attempt to gain, favours, or to threaten or cause disadvantage. Such action is of both legal and ethical concern in an academic institution where staff and students work in an environment of dependence and trust.

3.11 Sexual relationships between persons who are apparently of equal or similar status, such as students or colleagues, may include abuses of power.

3.12 While the University does not wish to intervene in private sexual relationships, it cannot condone sexual relationships between staff and students. There is a power imbalance in such relationships and, if they develop and then founder, the failed relationship may well give rise to a complaint of sexual harassment. Such a situation creates great difficulties between the parties involved and the University.

3.13 Forms of behaviour that may initially appear mild or trivial can constitute harassment in relationships where there is formal inequality of personal status.

3.14 Because of differentials in power, the person who is the subject of harassment may not overtly indicate that the behaviour is unwelcome. If, however, the behaviour can reasonably be perceived to be harassing, then harassment may be determined to have occurred.

4.LIABILITY

4.1 All persons holding supervisory or official positions in James Cook University and in bodies which may adopt these policies and procedures (such as colleges and the James Cook University Student Association) shall have a responsibility to take appropriate action if concerns about discrimination or harassment are brought to their attention.

4.2 It is the legal responsibility of all managers and supervisors in the University to take reasonable steps to ensure that the work and study environment is free from harassment. Therefore heads of schools must take active steps to circulate and implement these policies and procedures so that staff and students in their area are aware of them and understand that they are expected to comply with them.

4.3 Failure to comply with these policies and procedures may cause the University and a head of school or supervisor to be vicariously liable should a complaint be received.

4.4 Under law, both staff and students will be personally liable if their actions constitute harassment.

5.DISCRIMINATION ADVISERS

5.1 Following consultation with the Director, Equity, Counselling & Careers, the Deputy Vice-Chancellor, University Services & Registrar shall appoint, from time to time, a sufficient number of female and male Discrimination Advisers to provide access for staff and students on all campuses.

5.2 Reasonable efforts shall be made to ensure that Discrimination Advisers represent a broad range of interest of staff and students.

5.3 The Director, Equity, Counselling & Careers shall arrange for Discrimination Advisers to be trained and provide them with continuing support and advice as well as with the opportunity for discussion and review of procedures.

5.4 The role of Discrimination Advisers is to act fairly and impartially, and with all due confidentiality, to provide information, advice and support to permit a client to make an informed choice about further action pertaining to equal opportunity matters. Advisers may choose to work only with certain elements of equal opportunity, such as sexual harassment or racial discrimination, rather than across the entire range of grounds, or they may chose to work onlyin restricted areas – such as in their own faculty or University residence.

5.5 Discrimination Advisers may assist-

  • members of the University community who perceive that they might have experienced discrimination or harassment or who believe that an allegation of discrimination or harassment may be or has been made against them;

  • persons who believe that they have been or may be victimised in association with an enquiry or complaint about discrimination or harassment;

  • persons who are attempting to facilitate harmonious working and academic relationships during and after an enquiry or complaint concerning discrimination or harassment.

5.6 Assistance provided by Advisers may include-

  • listening seriously and impartially to the concerns and perceptions expressed;

  • explaining the University's policies pertaining to discrimination and harassment and the procedures available for resolving complaints and grievances;

  • providing information about rights under Federal and State laws, including the opportunity to lodge complaints with the Human Rights and Equal Opportunity Commission / Queensland Anti-Discrimination Commission;

  • referring the complainant in appropriate cases, to other sources of assistance, including counselling services;

  • providing appropriate support to the complainant until the matter is resolved;

  • consulting with managers and supervisors to facilitate working and collegialrelationships;

  • undertaking negotiations between the parties and between the parties and their supervisors in appropriate cases.

5.7 If a Discrimination Adviser has reason to believe that a sexual assault or other relevant criminal offence has occurred, the Adviser shall inform the Director, Equity, Counselling & Careers immediately. The client shall be advised to consult the Police and appropriate support services.

5.8 The Adviser shall ensure that any person who expresses an intention to lodge a written complaint of discrimination or harassment that names a respondent is informed that, subject to the substance of the complaint, the matter must be dealt with under one of the steps outlined in section 6 below. The University cannot accept a written complaint naming a respondent and agree to take no action.

5.9 In order that the operation of the procedures may be monitored, and that serial offenders may be detected readily, each Discrimination Adviser shall provide to the Director, Equity, Counselling & Careers a brief written confidential report on each matter dealt with.This report must name both parties to the complaint.The Adviser will inform the client that the provision of this report is a condition of receiving the complaint.

5.10 The Adviser shall not otherwise disclose any information about a client without the client's consent, except where there is a reasonable belief that failure to disclose to an appropriate authority may lead to serious harm to an individual or to the community.

5.11 Subject to any constraints of Section 7.3below, Discrimination Advisers shall ensure the confidential safe keeping of any documents or records retained, in whatever form.

6.STEPS IN COMPLAINT RESOLUTION

Notwithstanding clause 6.6.4 below, the complainant shall present the complaint as promptly as possible after the alleged discrimination or harassment occurs. One consequence of failure to act promptly is that it may preclude recourse to external procedures should the complainant desire to pursue this option at a later date. The following steps shall be available-

6.1 Advice and Self Help

A complainant consults a Discrimination Adviser and receives clarification and advice. If appropriate, the complainant then addresses the matter with the alleged respondent.

or

The complainant composes an appropriate letter to the alleged respondent setting out the grievance and requesting cessation of specified behaviour. The Adviser may assist in this composition.

6.2 Adviser Assistance

The complainant consults a Discrimination Adviser who accompanies the complainant to address the matter with the alleged respondent, or the Adviser may write to the alleged respondent conveying the complainant’s concern and requesting that the offending behaviour cease.

6.3 Intervention

The complainant approaches an appropriate authority (eg head of school, supervisor, head of college) and requests intervention;

or

The complainant requests a Discrimination Adviser to approach an appropriate authority with a request for intervention. This approach may be made by the Adviser alone, or with the complainant in attendance;

or

the Discrimination Adviser, at the request of, or with the agreement of, the complainant, requests the Director, Equity, Counselling & Careers to intervene by speaking or writing to the alleged complainant, or by approaching an appropriate authority, such as a head of school or a Pro-Vice-Chancellor in relation to the difficulties allegedly encountered by the complainant.

6.4 Mediation

The Director, Equity, Counselling & Careers or nominee may act as an intermediary between the parties with the aim of reaching an agreed solution It is also permissible to use co-mediation: two Advisers work together, one working primarily with the complainant and the other with the respondent. This option can result in a feeling of support by both parties, and in less stress on each of the Discrimination Advisers who can share perspectives and proposals for a solution which will result in the continuance or resumption of satisfactory work or study.

6.5 Conciliation

6.5.1 A request for conciliation must be submitted by a Discrimination Adviser, with the complainant's agreement, to the Director, Equity, Counselling & Careers and be supported by a written statement of complaint.

6.5.2. A conciliator shall be appointed by the Director, Equity, Counselling & Careers.

6.5.3.A Discrimination Adviser may not act as conciliator in any matter in which he or she was initially consulted by one of the parties.

6.5.4. Each party may be accompanied to the conciliation conference by a Discrimination Adviser, colleague or other staff member or student. The parties shall be given notice of the conference, an account of the matter to be discussed, and an explanation of the conciliation process.

6.5.5. Should the respondent refuse or fail to appear before the conciliator, the Director, Equity, Counselling & Careers, at the direction of the Deputy Vice-Chancellor, University Services & Registrar, may instruct the respondent to appear. If the respondent again fails to appear, the matter may proceed to investigation (refer section 6.6 below).

6.5.6. The calling of a conciliation conference does not imply that there is a case to answer. It is not the role of the conciliator to make a formal finding but to ensure that each party has the opportunity to state their case and to be heard.

6.5.7. Both parties shall have the opportunity to state their views in the presence of the other. The conciliator may require separate interviews at any stage of the process.

6.5.8. If the parties and the conciliator agree, the relevant manager or supervisor or any other person may be invited to attend a conciliation conference to assist in formulating a resolution.

6.5.9. The parties and any other persons present will be required to sign a confidential written record of the agreement at the end of the conciliation conference. A confidential record of the names of the participants in the conciliation, the dates of any meeting, and a summary of any outcomes or agreements shall be lodged with the Director, Equity, Counselling & Careers who shall furnish copies to the complainant and respondent, and to any person who has a duty to monitor adherence to the agreement, such as the relevant supervisor(s), Discrimination Advisers or head of residence or college.

6.5.10. No other information about the parties shall be disclosed without their consent, except where the conciliator or University officers hold a reasonable belief that failure to disclose to an appropriate authority will lead to serious harm to an individual or to the community.

6.5.11. Evidence of anything said or done during conciliation shall not be admissible in any other action taken under these or other University procedures.

6.6 Investigation

Requests -

6.6.1 A staff member or student who believes that he or she has been the subject of discrimination or harassment or has been victimised as a result of action taken under these procedures may make a written request, through a Discrimination Adviser, for the Director, Equity, Counselling & Careers to set up a formal investigation.

6.6.2 A formal investigation shall be approved by the Director, Equity, Counselling & Careers only if other options have not proved satisfactory or if, in the opinion of the Director, other options are inappropriate.

6.6.3.In determining whether an investigation is appropriate, the Director, Equity, Counselling & Careers may seek advice from the Director, Human Resources Management or the Director, Student & Academic Services, as appropriate, and/or the Deputy Vice-Chancellor, University Services & Registrar, or such other senior officers of the University as are deemed appropriate.

6.6.4 A request to investigate must be lodged with the Director, Equity, Counselling & Careers within twelve months of the occurrence of the last incident which is the subject of complaint. A request to investigate will not be accepted outside this twelve month period unless the Director, Equity, Counselling & Careers considers it appropriate in the circumstances.

6.6.5 The request to investigate must be supported by a written statement describing the grounds for complaint.

6.6.6 The complainant may seek assistance from any person with the preparation of the written statement. However, complaints should exercise caution to avoid defamation (refer 7.2 below).

6.6.7 In order for the University to discharge its duty of care, particularly in relation to its students, staff,legitimate visitors andplacement agencies, the Director, Equity, Counselling & Careersmay request the relevant authority (Director of Human Resources Management or Director of Student & Academic Services) to seek an interim direction on certain matters, pending resolution of the complaint.Such matters may include the need to suspend or exclude a respondent or, in the case of a respondent who is a student, to restrict or place conditions upon continuation of enrolment or upon re-enrolment. The interim direction may cover restrictions upon access to any part or all parts of the University, including a respondent’s workplace.

Action on Requests -

6.6.8 The Director, Equity, Counselling & Careers shall make available to the respondent in an investigation a statement of the allegations.Natural justice does not require that the respondent be given all documentation, but sufficient detail must be provided to make possible an informed response. The statement of allegations shall be provided as soon as possible, and the respondent shall have up to fourteen days in which to reply. An extension of time may be granted by the Director, Equity, Counselling & Careers in special circumstances.

6.6.9 The respondent may seek assistance from any person with the preparation of the response.

6.6.10 A copy of the response shall be forwarded by the Director, Equity, Counselling & Careers to the complainant.

6.6.11 With the approval of the Director of Human Resources Management and/or the Deputy Vice-Chancellor, University Services & Registrar, the Director, Equity, Counselling & Careers shall appoint an investigator in order to investigate the complaint and to make recommendations on appropriate action. The investigator may be external or internal to the University, and must be capable of independent consideration and free from conflict of interest.

Proceedings of the Investigation -

6.6.12 The function of the investigation is not to conciliate but to investigate and determine the facts in dispute, and to make recommendations about resolution. In all actions, the investigator shall be guided by the principles of equal opportunity and of procedural fairness.

6.6.13 Proceedings of the investigation shall be held in confidence. No information about the investigation shall be disclosed except to a person to whom disclosure is consistent with her or his official position and responsibilities.

6.6.14 Should the respondent fail to submit a written reply to the complainant's allegation, or refuse or fail to appear in person before the investigator, the investigator may make a determination on the complaint after investigating the matter without having heard from the respondent. The investigator’s determination shall be presented to the Director, Equity, Counselling & Careers, who shall transmit it as appropriate to the Director of Human Resources Management or the Director of Student & Academic Services.

6.6.15 As soon as possible following the receipt by the Director, Equity, Counselling & Careers of the respondent's reply, the investigator shall normally interview the complainant, respondent and any witnesses. Delays may occur as a result of circumstances beyond the University's control.

6.6.16 Each party may be assisted at interview by a colleague or other staff member or student, or by an officer or member of a relevant staff or student association.

6.6.17 Each party may speak for themselves or through the person assisting.

6.6.18 Each party may request that the investigator interview witnesses, and the investigator may also summon witnesses.

6.6.19 After gathering information, the investigator shall first consider whether the complaint is substantiated, and then consider the formulation of appropriate recommendations.

Substantiated Complaints -

6.6.20 If the complaint is found to be substantiated, the investigator shall recommend appropriate action, which may include -

  • referring the matter to the University’s legal representatives for legal action;

  • counselling the respondent;

  • censuring the respondent;

  • warning the respondent that any repetition of the conduct may be regarded as misconduct or serious misconduct under the University's policies or agreements;

  • instituting disciplinary action under the relevant agreement or University policy;

  • in the case of students,placingtemporary or permanent conditions upon enrolment, or suspending or excluding the respondentfor a defined period, or expulsion.

In considering the investigator’s recommendations, the Director, Human Resources Management or the Director, Student & Academic Services may consider evidence that the respondent has been counselled or warned as a result of previous complaints.

6.6.21 The investigator may recommend that such action as is necessary be taken to-

  • restore the complainant to a standing that is the same or superior to that held at the time that the incident(s) occurred;

  • subject to the University's obligations under any relevant insurance policy, repair any loss or damage, pecuniary or otherwise, which might have been suffered by the complainant as a consequence of the behaviour giving rise to the complaint or the making of the complaint;

  • by appropriate steps, prevent the complainant from being disadvantaged or subjected to reprisals of any kind by any person by reason of making the complaint.

6.6.22 The investigator may make such other recommendations as are considered necessary to-

  • resolve the problem;

  • prevent the occurrence of similar problems in future;

  • ensure the continuation or restoration of good workplace relationships or an effective learning environment.

Possible outcomes are listed in greater detail in part C of the Further Information

Complaints not Substantiated -

6.6.23 When the complaint is found to be not substantiated, the Director, Equity, Counselling & Careers shall so advise the complainant and the respondent. If necessary, the Senior Deputy Vice-Chancellor shall be requested to instruct the appropriate University officer, such as a Pro Vice Chancellor, to take relevant steps to prevent the complainant or the person against whom the complaint was made being subjected to reprisals or discrimination of any kind by any person by reason of the complaint having been made.

6.6.24 If the complaint is found to be frivolous, vexatious, or made in bad faith, the Senior DeputyVice-Chancellor shall be so informed.

Investigator’s Report -

6.6.25 As soon as practicable, the Director, Equity, Counselling & Careers shall ensure that the complainant, the respondent and the relevant Discrimination Adviser(s) are informed in writing of the findings of the investigation and of any consequent action to be taken. At the same time, complainants shall be reminded of their rights under equal opportunity law. The complainant and the respondent may then make a further submission to the Director, Human Resources Management (staff) or the Director, Student & Academic Services (students), through the Director, Equity, Counselling & Careers, concerning the investigator’s recommendations.

6.6.26 The investigator shall give reasons for the findings and recommendations in a written report to the Director, Equity, Counselling & Careers, normally within thirty days of the conclusion of the investigation. A copy of this report shall be made available to the complainant and the respondent.

Appeals -

6.6.27 A party to the complaint who believes that the above procedures were not followed correctly, may lodge an appeal with the Senior Deputy Vice-Chancellor through the Director, Equity, Counselling & Careers. The Senior Deputy Vice-Chancellor shall consider the submission and, if the complaint is deemed to have substance, shall request the investigator to re-examine the evidence and conclusions. There shall be no other grounds for internal appeal.

6.6.28 Any request for an internal appeal shall be lodged within thirty days of the issue of the report of the investigator.

7.CONFIDENTIALITY

7.1 It is the essential to the best interests of the parties to the complaint that confidentiality be maintained to the greatest possible extent at all stages of these procedures. Communication about the complaint must be limited to persons to whom disclosure is consistent with official position and responsibilities.

7.2 An accusation of discrimination or harassment is potentially defamatory and, in order that defences to a defamation action are available to the University or to persons involved in the grievance, it is essential that the following procedures be observed-

7.2.1 a person making a complaint under these procedures must act honestly and in good faith;

7.2.2 any staff member or student wishing to communicate with another person about a matter coming under these procedures must do so in private or by correspondence marked "personal and confidential";

7.2.3 all persons involved in these procedures must act within their roles and guidelines of James Cook University.

7.3 In an emergency, the public interest may require that the University release confidential information to appropriate authorities. This is permitted by law. The University must comply with legal requirements to release confidential information in response to a subpoena or search warrant.

8.OPERATION

8.1 The Director, Equity, Counselling & Careers shall be responsible for the operation of the procedures, under the direction of the Deputy Vice-Chancellor, University Services & Registrar, and shall have access to all relevant meetings and records.

8.2 The Director, Equity, Counselling & Careers shall ensure safe keeping of relevant records.

8.3 The Director, Equity, Counselling & Careers shall consult with the Discrimination Advisers and relevant senior officers,and report from time to time to the Deputy Vice-Chancellor, University Services & Registrar through the Director, Human Resources Management, on the operation of the procedures and the need for any change.

Related documents, legislation or JCU Statutes

All Federal and State of Queensland anti-discrimination legislation,

Workplace Relations Act 1996,

Equal Opportunity for Women in the Workplace Act 1999,

Criminal Law (Rehabilitation of Offenders) Act 1986,

Criminal Law Amendment Act 1993,

Workplace Health and Safety Act1995,

Workcover Act 1996,

Industrial Relations Act 1999

Age Discrimination Act 2004

Workplace Relations Amendment (Workchoices) Act 2005

Further Information

A. Relevant Laws pertaining to Discrimination and Harassment

B. Forms of Harassment

  1. Sexual Harassment

  2. Racial Harassment

  3. Disability-based Harassment

  4. Harassment and Bullying

  5. Other Forms of Harassment

C. Possible Outcomes

A.RELEVANT LAWS PERTAINING TO DISCRIMINATION AND HARASSMENT

Commonwealth Laws -

  • Racial Discrimination Act 1975

  • Sex Discrimination Act 1984

  • Human Rights and Equal Opportunity Commission Act 1986

  • Disability Discrimination Act 1992

  • Workplace Relations Act 1996

  • Equal Opportunity for Women in the Workplace Act 1999

Queensland State Laws -

  • Anti-Discrimination Act 1991

  • Disability Services Act 1992

  • Age Discrimination Act 2004

  • Workplace Relations Amendment (Workchoices) Act 2005

  • Criminal Law Amendment Act 1993

  • Work Health and Safety Act 2011

  • WorkcoverAct 1996

  • Industrial Relations Act 1999

B.FORMS OF HARASSMENT

1. Sexual Harassment

Sexual harassment consists of any behaviour of a sexual nature that is uninvited and unwelcome. It is an unwelcome sexual advance or unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, perpetrated in circumstances in which a reasonable person would anticipate that the person harassed would be offended, humiliated or intimidated. It may be a single incident or a prolonged pattern of behaviour. It may be unintentional or deliberate. It may be consistent with values and behaviour that have previously gone unchallenged but which are reasonably viewed by the person to whom they are directed as offensive, humiliating or intimidating. Such unwelcome behaviour may include but is not limited to-

  • jokes, humour, comments or insults of a sexual nature;

  • unwelcome, sexually suggestive gestures, such as wolf-whistling, hand or body gestures, or references to appearance or anatomical features;

  • displays of sexually suggestive, pornographic or obscene material;

  • persistent invitations following refusal;

  • unwelcome comments or questions about private relationships, sexuality or sexual practice;

  • repeated, unwanted discussions on sexual matters;

  • obscene messages in writing or by telephone, facsimile, computer or electronic or other means;

  • unwelcome requests for sexual favours, either directly or by implication, which may be coupled with offers of workplace or academic favours or threats of disadvantage following refusal;

  • deliberate and unwelcome physical contact, such as pinching, patting or rubbing against another person or unwanted touching or fondling;

  • stalking;

  • sexual assault;

  • rape.

2. Racial Harassment

2.1 The term "race" and its variants include colour, descent or ancestry, ethnicity or ethnic origin, nationality, national origin or immigration.

2.2 Harassment on racial grounds may be encountered by people who look "different" from the majority or dominant group, or by people who sound "different", because their accent or patterns of speech vary from the dominant group of the locality.

2.3 Examples of racial harassment may include but are not limited to-

  • racially-based denial or limitation of access to facilities or services including employment opportunities, education or training;

  • abuse, insults or "jokes" about a person's physical features; racial, ethnic or national origin, accent, dialect or pattern or speech;

  • written or oral racist comments, made in the course of academic or administrative activities, meetings or interviews, or in telephone, computer or electronic communication systems;

  • derogatory name calling;

  • public declarations that incite racial or religious hatred and racial or religious vilification;

  • provocative behaviour, such as the wearing of racist badges or insignia;

  • display or distributionin the University, or at any University-associated activity, of racially-based, offensive material;

  • using University facilities to recruit students or staff to organisations or groups that advocate racial discrimination or harassment;

  • isolation or segregation of people of a race or nationality that is different from that of the dominant group;

  • exclusion of the knowledge or experience of Australia's Indigenous people from discipline areas to which these are relevant;

  • jokes about food preference, or religious or social customs;

  • the attribution of stereotypical behaviour to a particular racial group in the hearing of a member of the racial group;

  • physical harassment.

3. Disability-based Harassment

3.1 The definition of disability, according to the Commonwealth Disability Discrimination Act 1992, is-

(a) total or partial loss of the person's bodily or mental functions; or

(b) total or partial loss of a part of the body; or

(c) the presence in the body of organisms causing disease or illness; or

(d) the presence in the body of organisms capable of causing disease or illness; or

(e) the malfunction, malformation or disfigurement of a part of the person's body; or

(f) disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour;

and includes a disability that-

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(j) is imputed to a person.

3.2 A person with a disability may be singled out for unwelcome attention. Alternatively the person with a disability may endure exclusion or isolation.

3.3 Examples of disability-based harassment may include but are not limited to-

  • interference by permanent or temporary removal or adjustment of an aid (eg. hiding a walking stick, turning off a device);

  • abuse, insults or "jokes" about a person's physical appearance or capabilities or intellectual capacity;

  • implying that a physical disability is necessarily related to or a manifestation of intellectual limitation (people with hearing impairments are particularly vulnerable in this regard);

  • persistent denial of access to facilities and services, including relevant training, or refusal to make reasonable accommodation for a person’s disability;

  • isolation or segregation.

3.4 Derogatory comments on conditions, equipment or personal support (eg. interpreter, reader, carer, or trained animal) provided because of a person's disability or medical condition, and the statement of an implied belief that such provision is a form of advantage or favouritism, can also constitute harassment.

4. Harassment and Bullying

4.1 Harassment and bullying are forms of discrimination. They consist of offensive, abusive, belittling or threatening behaviour directed at an individual or a group. Before unfavourable treatment is classified as merely the result of a personality clash, it is necessary to consider the contributing effect of any attribute such as race, sex, age or disability. It is sufficient under law if an attribute is a reason for discriminatory conduct. It does not need to be the sole or even dominant reason. Hostility and systematic lack of civility may also deteriorate into harassment or bullying.

4.2 Harassing behaviour makes the workplace or study environment, or matters associated with them, unpleasant, humiliating or intimidating for the person or group of people targeted by the behaviour. It can severely inhibit effective work, study and productivity.

4.3 Harassment and bullying must not be confused with legitimate advice and comment from academic and workplace supervisors on an individual's work performance. Such comment and advice may legitimately include negative statements and feedback.However, such feedback must be offered in a spirit of improving performance, not of demeaning or humiliating the recipient.Negative feedback must be offered in private, not in public.

4.4 Harassment or bullying can be perpetrated by staff to staff, staff to students, students to staff, or students to students.

4.5 Examples of bullying and harassment may include but are not limited to-

  • physical attack or assault or coercive behaviour;

  • insulting or threatening gestures;

  • repeatedly shouting or swearing at a person, either in public or in private;

  • oral and written statements that are derogatory or intimidating, whether made directly, or to or through a third party;

  • public humiliation;

  • continual unjustified and unnecessary comments about a person's standard of work or capacity for work;

  • persistent unjustified or inappropriate criticism or over-detailed supervision, including unwarranted checks on performance;

  • pictures, posters, cartoons, graffiti or written material that are offensive or obscene;

  • threatening or abusive telephone calls, written communications, facsimiles or messages on electronic mail or computer networks;

  • spreading malicious, unfounded rumours;

  • persistent following within the University, or to or from the University or associated activities;

  • continual exclusion of a person or a group from work or studyassignments, networks, work- or study-related social activities and networks, or from normal workplace or collegial conversation and interaction;

  • threatening, instilling fear, persecution;

  • initiation rites or unkind practical jokes.

Staff who believe that they may be encountering bullying behaviour should also consult the University’s policy on Workplace Bullying and Intimidation.

5. Other Forms of Harassment

Discrimination on grounds other than those listed above may adversely affect work and study. Such grounds include age, gender identity, religion, political belief or activity, sexuality, and trade union activity. Such discrimination harassment is contrary to University policy and, in the exempla quoted above, to the law.

C.POSSIBLE OUTCOMES

If a complaint of discrimination or harassment is found to be substantiated, the outcome should reflect the reasonable expectation of the complainant. Possible outcomes vary according to the status of the parties to the complaint as staff members or students. Outcomes may include, but are not limited to, the following-

For the Complainant

  • Apology:

    • oral, in private or in public,

    • written, in private,

    • written, in public: student newspaper, house

    • magazine, or newspaper.

  • Compensation:

    • consideration in assessment,

    • admission to subject or course previously denied as a result of rejection of harassment,

    • recrediting of leave taken during period of harassment or discrimination,

    • leave during investigation,

    • payment of medical or associated fees caused by stress condition,

    • removal from records or files of detrimental comments re performance during period of harassment or discrimination,

    • admission to staff development activity,

    • appointment or promotion denied because of rejection of harassment or discrimination,

    • transfer out of environment with unpleasant associations,

    • in case of external complaint, some compensation for expenses, lost wages, humiliation and hurt to feelings.

For the Respondent

  • Referral to the University’s legal representatives for legal action;

  • Disciplining within University certified industrial awards and agreements and policies, including-

    • imposition of conditions upon employment or upon enrolment or re-enrolment

    • warning and counselling on misconduct,

    • closer supervision of conduct

    • withholding of increments,

    • suspension or exclusion for a defined period, or permanent exclusion

    • censure

    • demotion/downgrading of job status and responsibilities,

    • transfer to another position or, in the case of a student, to another course of study, subject to the approval of the relevant Pro-Vice-Chancellor,

    • dismissal or expulsion,

Harassment: Policy and Procedure

Supporting Procedures and Guidelines

Code of Conduct

Student Conduct Policy

Approval Details

Policy sponsor:

Deputy Vice-Chancellor, University Services & Registrar

Approval authority:

Remuneration & Human Resources Committee

Version no.:

03-1

Date for next review:

10/2008

Modification History

Version no.

Approval date

Implementation date

Details

03-1

03/10/2003

03/10/2003

Approved by University Council

96-1

--/04/1996

Approved by Vice-Chancellor