Discrimination, Bullying and Harassment Complaint Procedure for Staff and Affiliates

Policy Procedures Discrimination, Bullying and Harassment Complaint Procedure for Staff and Affiliates

Print Friendly and PDFPrint Friendly

Intent

To describe the process by which staff and affiliates raise a complaint with JCU alleging discrimination, bullying, harassment, sexual assault, sexual harassment and vilification under the Discrimination, Bullying and Harassment Policy (the Policy).

Scope

This procedure applies to complaints raised by a member of staff or affiliates. Students who wish to make a complaint refer to the Student Complaint Management Policy and Procedure.

Definitions

Alternative Dispute Resolution (ADR) is where an independent third party assists the complainant and the respondent to reach a mutually agreed outcome. ADR processes include mediation, facilitation and conciliation.

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

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

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

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. Harassment can arise as the result of a single incident as well as repeated incidents (e.g. hazing).

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.

Representative is a person to assist, accompany and support them in their participation in matters relating to this procedure.  A representative may be a staff member; or delegate or staff member of a union that is a party to the Agreement and not a practicing solicitor or barrister.

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

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 assault is a criminal offence.

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 person to engage in sexual behaviour for some educational or employment benefit; or
  • Making a real or perceived threat that rejecting sexual behavior will carry a negative consequence for the person in education, employment, on-campus residence, or University program or activity.

Sexual harassment is prohibited by the Anti-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.

Procedure

1. Support

  1. JCU has a number of staff who act as Equity Contact Officers (ECOs), who provide support, information and referral and are the first point of contact for JCU students and staff who have concerns or questions about discrimination, bullying, harassment, sexual assault, sexual harassment and/or vilification.  Details can be found at: https://www.jcu.edu.au/human-resources/staff-equity/equity-officers
  2. JCU provides confidential counselling assistance to staff via the Employee Assistance Program, through Davidson Trahaire Corpsych, by phoning 1300 360 364.  More details are available at: https://www.jcu.edu.au/human-resources/staff-equity/employee-assistance-program
  3. Note that Sexual Assault is a criminal offence and staff will be supported in their response including reporting to the Police. Support and information specific to sexual assault is also available in the community from the following services:
    • Townsville Sexual Assault Service 4775 7555
    • Cairns Sexual Assault Service 4031 3590
    • QLD Sexual Assault Helpline on 1800 010 120
    • National Respect Service on 1800 737 732

2. Making a complaint

  1. Any staff member or affiliate who believes they have experienced or witnessed behaviour which contravenes the Policy may make a complaint under this Procedure.
  2. At any stage of the process under this Procedure, a staff member may seek the assistance and support of a representative.
  3. Prior to making a complaint under this Procedure, a complainant is strongly encouraged to speak with an Equity Contact Officer.  This helps to ensure concerns are raised in an appropriate way and that the correct process is followed, including to:
    1. clarify whether the alleged behaviour may constitute a breach of the policy (or whether it should be dealt with under an alternative policy/procedure);
    2. provide information about the policy and procedure; and
    3. referral to complaint resolution options and support programs available to both the complainant and the respondent
  4. There are three options provided under these Procedures for responding to a complaint of discrimination, bullying, harassment, , sexual harassment and/or vilification:
    1. an informal complaint process,
    2. a formal complaint process, or
    3. referral to an external body.
  5. For sexual assault, there is no expectation that an informal complaint process would be undertaken.
  6. In addition, a staff member should not be required to exhaust informal attempts at resolution before formal action commences. Complainants have the right to formalise their complaint at any stage.
  7. If a complaint is made, either as an informal complaint or a formal complaint, and where the alleged behaviour is of a serious nature or as the complaint is progressed the seriousness of the alleged behaviour becomes apparent (e.g. misconduct/serious misconduct), at any time during the complaints processes it may be referred as follows:
    1. in the case of a respondent whois astaff member, a matter may be referred to the Director HR for consideration under the Misconduct/Serious Misconduct provisions of the JCU Enterprise Agreement in force or effect.
    2. in the case of a respondent who is an affiliate, a matter may be referred to the Director HR for consideration, advice and referral to the relevant Deputy Vice Chancellor for further action (as appropriate).
    3. in the case of a respondent who is a student, a matter may be referred to the Director Student Services for consideration in line with the Student Conduct Policy or other relevant policy or procedure.

3. Informal Complaints Process

  1. An informal complaint process is recommended where:
    1. The alleged behaviour is/was not violent and addressing it with the respondent will not create an unsafe circumstance for the complainant; and/or
    2. the complainant seeks a quick resolution by making it clear that the behaviour is unwanted and wants it to cease;
  2. In the first instance the complainant, if they feel safe to do so, is encouraged to initiate a conversation letting the respondent know that their behaviour is impacting the complainant and/or others and request that it stops.
  3. If the behaviour persists, the complainant may approach their supervisor or next level manager to request support to address the behaviour.
  4. In the case of a staff member respondent, a supervisor may also have responsibilities to address the complaint informally are aligned to clause 54.2.1 Initial Informal Action of the Enterprise Agreement 2013-2016.
  5. Potential outcomes of an informal process may include, but are not limited to:
    1. an apology;
    2. an agreement between the parties on acceptable behaviour;
    3. resetting expectations of behaviour for all parties by the supervisor or next level manager;
    4. undertaking internally provided training programs;
    5. participation in Alternative Dispute Resolution (ADR) as per section 6 below; and/or
    6. refer the matter as per section 2.7 of this procedure.
  6. The informal complaint process will be carried out in good faith and complaints that are frivolous, vexatious, misconceived or lacking in substance will be rejected if a preliminary investigation of the facts indicates this.  Where a complaint is found to be vexatious or has been made in bad faith, disciplinary action may be taken against the complainant.

4. Formal Complaints Process

  1. A complaint may be made under the formal complaints process regardless of whether an informal complaints process has been instigated earlier.
  2. The formal complaints process option may be appropriate where:
    1. informal attempts at resolution have failed;
    2. the complainant is alleging that the inappropriate behaviour being complained about is victimisation or reprisal action as the result of an earlier complaint;
    3. in the case of a respondent who is a staff member, the complaint involves allegations which could constitute misconduct or serious misconduct within the meaning of the JCU Enterprise Agreement as in force or effect at the time;
    4. in the case of a respondent who is an affiliate, the complaint involves allegations which could constitute a breach of the affiliate’s letter of appointment or invitation to work, research or study at the University, or other related policies, the matter will be referred in the first instance to the Director HR;
    5. in the case of a respondent who is a student, the complaint involves allegations which could constitute a serious breach of the Student Conduct Policy as in force or effect at the time.
  3. A staff member or affiliate can initiate a formal complaint relating to a breach of the Policy by completing the Discrimination, Bullying and Harassment – Staff and Affiliates Formal Complaint Form.  This form is to be completed in full and lodged with the supervisor or next level manager, and copied to Human Resources as described on the form.
  4. Upon receipt of a formal complaint, the supervisor or next level manager should seek advice from the Human Resource Consultant or Human Resources Business Partner, on an appropriate approach to respond.
  5. The response to a formal complaint may include:
    1. a method of Alternative Dispute Resolution; or
    2. investigation;
    3. or refer the matter as per section 2.7 of this procedure.
  6. The formal complaint process will be carried out in good faith and complaints that are frivolous, vexatious, misconceived or lacking in substance will be rejected if a preliminary investigation of the facts indicates this.  Where a complaint is found to be vexatious or has been made in bad faith, disciplinary action may be taken against the complainant.

5. Formal investigation process

  1. If the supervisor / next level manager (in consultation with the HR Business Partner) determines a formal investigation is necessary, an appropriate investigator will be appointed.
  2. To afford natural justice to both the complainant and respondent, the investigator will ensure that:
    1. the complainant and respondent receive information about the standard of conduct expected during an investigation process, including confidentiality;
    2. all issues are investigated thoroughly;
    3. all participants in the investigation are informed of information relevant only to their participation in the investigation;
    4. the complainant and the respondent have the right to be heard and be treated impartially and without bias;
    5. the complainant, respondent and any interviewees are afforded the right to a Representative at discussions or interviews throughout the process;
    6. the investigation report will not be released to any parties, unless required under law.  Key findings from the investigation will be provided to both the complainant and the respondent.
  3. For the purpose of conducting an effective investigation, all parties acknowledge that information relating to the investigation could contain confidential, sensitive or personal information or material.  Information could include interviews, statements, emails, phone records, text or data messages, forming part of the investigation report and as such, shall not be made available to staff or other stakeholders.
  4. The investigator will generally make a finding about the allegation of behaviour which is in breach of the Policy, in which case the complainant and the respondent will be notified in writing whether the allegation is substantiated or not and the reason for this determination.
  5. Other parties involved in the investigation will receive communication to confirm their involvement has concluded or the investigation process has concluded.
  6. On completion of an investigation and the allegations being substantiated, the relevant manager will determine appropriate actions, which may include but are not limited to:
    1. the complainant and the respondent participate in an Alternative Dispute Resolution (ADR);
    2. training;
    3. resetting expectations of behaviour by the supervisor; or
    4. other options as deemed appropriate to the circumstances; or
    5. refer the matter as per section 2.7 of this procedure.

6. Alternative Dispute Resolution

  1. Alternative Dispute Resolution may help the complainant and respondent resolve a complaint or reach an agreement, and can occur at any stage of the complaint management process.
  2. Participation in Alternative Dispute Resolution in an informal or formal complaint management process is voluntary and must be agreed to by both the complainant and the respondent.
  3. Alternative Dispute Resolution may include:
    1. Mediation: a process in which the complainant and the respondent, with the assistance of an independent dispute resolution practitioner (the mediator) negotiate in an endeavour to come to a mutually agreed resolution. The mediator has no advisory or determinative role.
    2. Facilitation: a process in which the parties (usually a group), with the assistance of an independent dispute resolution practitioner (the facilitator) identify problems to be solved, tasks to be accomplished or disputes issues to be resolved. Facilitation may conclude there, or it may continue to assist the parties to develop options, consider alternatives and endeavour to reach an agreement. The facilitator has no advisory or determinative role.
    3. Conciliation: a process in which the complainant and the respondent, with the assistance of an independent dispute resolution practitioner (the conciliator), identify the issues, develop options, consider alternatives and endeavour to reach an agreement. The conciliator may have an advisory role on the dispute or the outcome of its resolution, but not a determinative role.

7. Referral to external bodies

  1. While staff and affiliates are strongly encouraged to use JCU’s internal complaint management options outlined in this Procedure where appropriate, staff and affiliates have the right to seek advice from and/or lodge a complaint with an external body, which may include the Queensland Police, the Fair Work Commission, Queensland Anti-Discrimination Commission and Workplace Health and Safety Queensland.

8. Records

  1. Records relating to a complaint are not held on a staff member’s personnel file.  These records are held on a confidential file, and may include the complaint form and submission, investigation report and related material such as records of interview and witness statements, the determination and reasons by the investigator, and any other material provided during the course of the investigation.
  2. Any records relating to corrective actions taken as a result of a substantiated breach of the policy (e.g. disciplinary action) will be held on a staff member’s confidential personnel file.
  3. The University will collect de-identified data for statistical purposes, to enable and inform initiatives and programs in order to create a safe and inclusive workplace for all.

9. Confidentiality

  1. Any party involved in a matter relating to the Policy and this Procedure (including complainant, respondent, witnesses, interviewees and representatives) have a responsibility to treat the complaint and all information and associated processes as confidential.
  2. Information provided by the complainant or the respondent will be treated as confidential and will be provided only to those who have a need for the information for the purposes of managing the complaint in the course of their employment with the University or when it is required in the course of investigating or resolving the complaint.
  3. Staff should also be aware, that where a matter is referred for management under Clause 54 (Misconduct / Serious Misconduct) of the JCU Enterprise Agreement 2013 – 2016, clause 54.1.5 will apply; namely :
    1. The confidentiality of all parties involved in the management of Misconduct and Serious Misconduct processes will be respected and all information gathered and recorded will remain confidential, subject to JCU’s obligations:
    • to discharge its responsibilities under legislation or University policy;
    • for a proceeding in a court or tribunal; or
    • unless the person to whom the confidential information relates, consents in writing to the disclosure of the information or record; or if no consent is obtainable and such disclosure is unlikely to harm the interests of the person affected; or
    • unless the information is already in the public domain.

10. Bad Faith or False Allegations

  1. Reports (whether oral or in writing) made in bad faith and/or including false information in the course of an investigation may lead to allegations of misconduct/serious misconduct and result in disciplinary action against the person.

Related policy instruments

Related policy instruments include but are not limited to the following documents. Further related instruments can be found at the JCU Human Resources website.

Schedules/Appendices

Administration

Approval Details

Policy Sponsor and approver of procedure

Vice Chancellor

Version no

V17-3

Date for next review

26 October 2018

Revision History

Version

Approval date

Implementation date

Details

Author

17-313/11/201714/11/2017Administrative amendment to correct reference to incorrect clause number and correct approval authorityDeputy Director, Human Resources
17-226/10/201702/11/2017Changes to Clause 3.1.b as advised by Chief of Staff 26/10/2017Chief of Staff

17-1

26/10/2017

27/10/2017

Procedure Established - Procedure for staff and affiliates relating to the Discrimination, Bullying and Harassment Policy.

Deputy Director, Human Resources

Keywords

Complaint, Complainant, Respondent, Victimisation, Code of Conduct, Breach, Misconduct, Serious misconduct, Discrimination, Harassment, Bullying, Intimidation, Sexual Harassment, Sexual Assault.