Discrimination, Bullying and Harassment Policy

Policy HR & Staff Development Discrimination, Bullying and Harassment Policy

Print Friendly and PDFPrint Friendly

Intent

To promote the right of all students, staff and affiliates to work, research and study in an environment free from discrimination, bullying, harassment, hazing, sexual assault, sexual harassment and vilification (henceforth simply discrimination, bullying, and harassment) and to ensure that students, staff and affiliates understand the University’s accountabilities and complaint handling principles. This policy affirms the University’s commitment to:

  1. provide a safe and healthy workplace and learning environment that is free from discrimination, bullying and harassment; and
  2. provide students, staff and affiliates with information and training in relation to such conduct.

Scope

This policy applies to all members of Council, Staff, Students, and Affiliates of James Cook University, Australia (JCU or the University) while engaged in activities undertaken as part of their study, research and work, or other association with JCU.

Definitions

Except as otherwise specified in this policy, the meaning of terms used in this policy are as per the Policy Glossary (https://www.jcu.edu.au/policy/learning-and-teaching/glossary-of-terms-for-policies-in-the-Student-and-teaching-and-course-management-chapters-of-the-policy-library):

Affiliates

Is a person (other than a Staff member or Student) who is affiliated with JCU by letter of appointment or invitation to work, research or study at the University for a particular activity and for a prescribed timeframe and who is bound to comply with the University’s policies during that period.

Bullying

Bullying is repeated and unreasonable behaviour directed towards a person or group of people that creates a risk to health and safety:

  • Repeated behaviour is behaviour which occurs more than once and may involve a   range of behaviours over time; and
  • Unreasonable behaviour is behaviour that a reasonable person, having regard for   the circumstances, would see as unreasonable, including behaviour that is   victimising, humiliating, intimidating or threatening.

What is not bullying

The following behaviours do not constitute bullying:

  • A single incident of unreasonable behaviour. However, single or   one-off incidents of unreasonable conduct can also cause a risk to health and   safety, may breach other University policies and could constitute misconduct.
  • Low level conflict defined as interpersonal conflict or disagreement   which is not sufficient to constitute bullying. People can and will disagree   with each other.
  • Reasonable direction and expectations of staff, including as part of   performance management procedures.

Complaint

Is a Complainant’s expression of dissatisfaction that their rights, existing interests and/or reasonable expectations under this policy have been adversely and unjustifiably affected because of an action, decision or omission within the control or responsibility of JCU.

Complainant

A person(s) who makes a complaint under this policy.

Consent

Consent means the free and voluntary agreement to participate in an activity which may include an intimate or sexual relationship. Circumstances where the ability to give free and voluntary consent may be impaired, or subsequently withdrawn, include:

  • lack of capacity to consent, including because a person is asleep or   unconscious, or so affected by alcohol or other drugs as to be unable to   consent;
  • the use of force, threatened use of force against the Complainant or   another person, which need not involve physical violence or physical harm;
  • unlawful detention;
  • mistaken identity and mistakes as to the nature of the act (including   mistakes generated by the fraud or deceit by the Respondent);
  • any position of authority or power; and
  • any intimidation or coercive conduct.

Discrimination

Has the same meaning as contained in the Anti-Discrimination Act 1991 (Qld), Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth).  Discrimination, including direct and indirect discrimination, occurs when a person is treated less favourably or harassed in certain areas of public life including their employment because of a personal characteristic or attribute, whether real or imputed, including the setting of a requirement, condition or practice that is unreasonable and that people with a particular characteristic cannot meet. The grounds for which a complaint may be made under this policy include discrimination, and harassment based on one or more of the following characteristics:

  • sex or gender;
  • relationship status, pregnancy,   breastfeeding, parental status and family responsibility;
  • sexuality or gender identity;
  • disability or impairment;
  • race, accent, colour, national or ethnic   origin, nationality, ethnicity, descent or ancestry, or immigration;
  • age;
  • religious or political belief or activity;
  • trade union activity;
  • lawful sexual activity; or
  • personal association with or relation to any   person who is identified on the basis of any of the above attributes.

Discrimination can be on the basis of Direct or Indirect Discrimination:

  • Direct discrimination on the basis of an attribute happens if a person   treats, or proposes to treat, a person with an attribute less favourably   than another person without the attribute is or would be treated in   circumstances that are the same or not materially different.
  • Indirect discrimination on the basis of an attribute happens if a person   imposes, or proposes to impose, a term:
    • with which a person with an attribute does not or is not able to comply; and
    • with which a higher proportion of people without the attribute comply or are able to comply; and
    • that is not reasonable.

What is not unlawful discrimination:

The following conduct does not constitute unlawful discrimination:

  • a person is not offered a job because,   notwithstanding that reasonable adjustments have been made, they cannot meet   the inherent requirements of the job;
  • a student with a disability does not pass   the requirements of a course, notwithstanding that reasonable adjustments   have been made;
  • the University has gained an exemption, or   the law otherwise permits the University, to target a job at a particular   group of people to help redress disadvantages that group may have experienced   in the past;
  • the University implements specific equal   employment opportunity or ‘affirmative action’ strategies, plans or programs   designed to ensure genuine equal opportunities in the workplace, particularly in relation to groups that have been disadvantaged in   the past.

Equity Contact Officer(s)

A person who has been trained by or on behalf of JCU to act as an Equity Contact Officer.

First Responder

A first responder in this context is a member of staff approached by a Complainant with a report or complaint involving discrimination, bullying, harassment, hazing, or sexual assault (as differentiated from an emergency services first responder such as police or ambulance personnel).

Harassment

Harassment occurs when a person, or a group of people, is intimidated, insulted or humiliated because of one or more characteristics, or from working in a hostile or intimidating environment that makes a person feel offended, humiliated or intimidated, and where that reaction is reasonable in the circumstances. Harassment can arise as the result of a single incident as well as repeated incidents (e.g. hazing).

Hazing

Hazing is any action or situation, with or without the consent of the participants, which recklessly, intentionally, or unintentionally endangers the mental, physical, or academic health or safety of a Student and can include the practice of rituals, challenges, and other activities as a way of initiating a person into a group including a new residential college, team, or club.

Natural justice

Natural justice, also known as procedural fairness, is concerned with the procedures used to arrive at a decision, rather than the decision reached. It requires a fair and transparent process. The Complainant and Respondent must both be afforded natural justice, which includes the Respondent being sufficiently informed of the allegation to allow for a meaningful response. Natural justice requires:

  • the right to be heard;
  • the right to be treated without bias or   conflict of interest;
  • a decision based on evidence.

These rules involve Complainants and Respondents having a reasonable opportunity to prepare and present a case and to have their cases considered justly.

Respondent

A person(s) against whom a complaint is made.

Sexual Assault

Sexual assault is any unwanted or forced sexual activity without consent. It covers a broad range of sexual activity. Both women and men can be sexually assaulted. Sexual assault includes:

  • Rape, which   is when non-consensual penetration occurs with any body part or object. It   includes oral sex.
  • Indecent   assault, which is when any assault of a sexual nature occurs without consent   (e.g. groping, inappropriate touching) or a person is made to perform a   sexual act without consent (e.g. perform a sexual act on an offender).

Sexual Harassment

Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature which makes a person feel offended, humiliated or intimidated, and where that reaction is reasonable in the circumstances. Examples of sexual harassment include, but are not limited to:

  • displays of   sexually graphic materials including posters, cartoons or messages left on   noticeboards, desks or common areas;
  • repeated   invitations to go out after prior refusal;
  • indecent exposure;
  • stalking;
  • offensive e-mails   and text messages;
  • pressuring a   student to engage in sexual behaviour for some educational or employment   benefit; or
  • making a real or   perceived threat that rejecting sexual behaviour will carry a negative   consequence for the student in education, on-campus residence, or University program   or activity.

Sexual harassment is prohibited by theAnti-Discrimination Act 1991 (Qld).

Vilification

Has the same meaning as contained in the Anti-Discrimination Act 1991 (Qld). Specifically, a person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.

Policy

The University confirms that:

  • All people have a right to an environment free from discrimination, bullying, and harassment while engaged in activities undertaken as part of their study, research and work, or other association with JCU.
  • All members of the JCU community are to be treated with dignity, courtesy and respect. Discrimination, bullying, and harassment will not be tolerated under any circumstances and JCU will take all reasonable steps to eliminate such conduct of or by members of Council, staff, students, visitors, affiliates and other members of the JCU community.
  • Discrimination, bullying, and harassment in employment and education is unlawful under various human rights and equal opportunity legislation as listed in the related documents and legislation section of this policy. Sexual Assault in particular is a serious criminal matter and staff, students and affiliates will be supported in their decisions around options for medical and legal action available when thinking about reporting to police and/or JCU, getting medical assistance or counselling.
  • JCU will use educative approaches for the prevention of discrimination, bullying, and harassment, to inform members of the JCU community of their rights and responsibilities, to encourage the reporting of behaviour, practices or publications that contravene this policy, and ensure JCU’s systems and processes are not discriminatory.

1.         Making a complaint

1.1     On receipt of a complaint, JCU will sensitively facilitate timely and appropriate action through appropriate avenues. These avenues include alternative dispute resolution as well as procedures for making formal complaints under the Student Complaint Management Policy and Procedures in the case of student complainants; and the Discrimination, Bullying and Harassment Complaint Procedure for Staff and Affiliates and Staff Code of Conduct in the case of staff/affiliate complainants.

1.2     Natural justice principles shall apply to the handling of complaints under this policy.

1.3     Except to the extent that disclosure is required or authorised by legislation, confidentiality will 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 complaint.

2.         Accountabilities and responsibilities

2.1     Managers and Supervisors. Members of the University community in management or supervisory positions have responsibility to ensure that, when an instance of bullying, harassment or discrimination is brought to their attention, they take appropriate action to remedy the situation expeditiously.

2.2     Director Human Resources (HR). In addition to the accountabilities and responsibilities which the Director HR has under other JCU policies and procedures, and the JCU Enterprise Agreement. The Director HR will facilitate the provision of education and information to discourage discrimination, bullying and harassment for staff; monitoring the effectiveness of this policy; and providing a report to the Vice Chancellor’s Advisory Committee and the University’s Joint Consultative Committee annually.

2.3     Director Student Services. The Director Student Services has accountabilities and responsibilities under the Student Misconduct Procedures where the respondent to a complaint of bullying, discrimination or harassment is a student.

2.4     Dean Learning, Teaching and Student Engagement (LTSE). The Dean LTSE will facilitate the provision of education and information to discourage discrimination, bullying and harassment for students including supporting Residential Assistant training within the Residential Colleges and the JCUSA Advocates; and monitor the effectiveness of this policy including through counselling services provided by Student Equity and Wellbeing.

2.5     Equity Contact Officers. Equity Contact Officers (ECO) are identified members of the University community who have received training in these roles as required by the Director HR. Support provided by ECOs may include, but is not limited to:

  • assisting staff and students to clarify the outcome/s they are seeking to the problem and provide information and/or referral to informal and formal resolution processes available;
  • provide staff and students with copies of the relevant University policies and procedures and the options available in those documents, including taking no further action;
  • advise or assist either the complainant or the respondent, but not both; and
  • providing information about the type of evidence required to support a complaint.

An ECO must not:

  • advocate, investigate, mediate or provide alternative dispute resolution for a complainant or respondent
  • assist staff or students where they may have an actual or perceived conflict of interest; and
  • provide advice of a legal nature to any person.

2.6.    Other support available. In addition, the ECOs may refer staff, students or affiliates to other support and advocacy services such as the Employee Assistance Program provided through HR, advocate services with the JCU Student Association, Student Complaints and/or Student Equity and Wellbeing Counselling services.

3.         Consequences of Breach

3.1     Breaches of this Policy will be addressed through the disciplinary procedures prescribed for Staff (including the University’s Code of Conduct and the Enterprise Agreement as amended or replaced from time to time), Students (including the Student Conduct Policy), and Affiliates. Depending upon the severity and implications of the breach, sanctions may include legal action, a formal warning, retraining, and/or other disciplinary action (such as suspension or termination of employment, or suspension or exclusion from the University).

Related policy instruments

Code of Conduct

Discrimination, Bullying and Harassment Complaint Procedure for Staff and Affiliates

Explanatory Statement to the Code of Conduct

Student Conduct Policy

Student Charter Research Higher Degree Students

Social Media Policy

Acceptable Use of ICT Policy

Student Complaint Management Policy and Procedures

James Cook University Enterprise Agreement

Related Resources

Report an Incident

Related documents and legislation

Commonwealth Laws

Age Discrimination Act 2004

Australian Human Rights and Equal Opportunity Commission Act 1986

Disability Discrimination Act 1992

Disability Standards for Education 2005

Fair Work Act 2009

Racial Discrimination Act 1975

Sex Discrimination Act 1984

Workplace Gender Equality Act 2012

Queensland State Laws

Anti-Discrimination Act 1991

Criminal Law Amendment Act 1993

Disability Services Act 1992

Industrial Relations Act 2016

Work Health and Safety Act 2011

Workers Compensation and Rehabilitation Act 2003

Approval Details

Policy sponsor:

Vice Chancellor

Approval authority:

Council

Version no.:

17-3

Date for next review:

25/01/2018

Modification History

Version

Approval date

Implementation date

Details

Author

17-3

23/10/2017

26/10/2017

Minor amendment to clause 1.1, changed ‘respondent’ to ‘complainant’

Chief of Staff

17-2

07/09/2017

22/09/2017

Changes to definition of Sexual Harassment as approved by Council 07/09/2017

Chief of Staff

17-1

25/07/2017

26/07/2017

Major review, changes made to Discrimination and Harassment Policy including name change and change of policy domain.

Vanessa Cannon, Chief of Staff