Bullying, Discrimination and Harassment Complaint Procedure for Staff and Affiliates

Intent

This procedure outlines how Staff and Affiliates raise a complaint with JCU alleging discrimination, harassment and/or bullying under the Bullying, Discrimination, Harassment and Sexual Misconduct Policy (the Policy). The University is committed to the rights of all Staff and Affiliates to work in an environment that is based on inclusivity and respect.

This Procedure is not to be used for Complaints regarding Sexual Harassment or Sexual Assault. Staff and Affiliates should refer to those separate Procedures under the Policy.

Scope

This procedure applies to all members of JCU Council, Staff and Affiliates while engaged in activities undertaken as part of their study, research, work, living and socialising at or with JCU. This procedure extends to wherever that activity takes place. The scope of the procedure includes but is not limited to:

• Campuses;
• Managed student accommodation;
• Sporting and recreational clubs and facilities to the extent that they fall within the University Community;
• Managed digital environments; and
• Activities and situations related to University business that are not conducted on University premises, including but not limited to:
  • field trips
  • placements and internships
  • conferences
  • places of accommodation whilst travelling
  • students camps
  • inter-University events
  • parties and other social functions.

Students who wish to make a Complaint regarding bullying, discrimination, or harassment are to refer to the Student Complaint Management Policy and Procedure.

Definitions

The meaning of terms used in this procedure are as per the Bullying, Discrimination, Harassment and Sexual Misconduct Policy and the University’s Policy Glossary.

Procedure

1.  Support

1.1  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, harassment or bullying. See Equity Contact Officers for further information.

1.2  JCU provides confidential counselling assistance to staff via the Employee Assistance Program, through LifeWorks, by phoning 1800 604 640. See Employee Assistance Program for further information.

2.  Making a Complaint

2.1  Any Staff member or Affiliate who believes they have experienced or witnessed behaviour which contravenes the Policy may make a Complaint under this procedure.

2.2  At any stage of the process under this procedure, a staff member may seek the assistance and support of a Representative.

2.3  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:

a) clarify whether the alleged behaviour may constitute a breach of the policy (or whether it should be dealt with under an alternative policy/procedure);

b) provide information about the policy and procedure; and

c) referral to complaint resolution options and support programs available to both the Complainant and the Respondent.

2.4  There are three options provided under these procedures for responding to a Complaint of Discrimination, Bullying, Harassment, and/or Vilification:

a) an informal complaint process,

b) a formal complaint process, or

c) referral to an external body.

2.5  A Staff member or Affiliate is not required to exhaust informal attempts at resolution before formal action commences. Complainants have the right to formalise their Complaint at any stage.

2.6  If a Complaint is made, either as an informal complaint or a formal complaint, and where 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:

a) in the case of a Respondent who is a Staff member, a matter may be referred to the Director HR for consideration under the Misconduct/Serious Misconduct provisions of the JCU Enterprise Agreement.

b) 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).

c) in the case of a Respondent who is a Council member, a matter may be referred to the Chancellor for consideration and further action (as appropriate) in line with the Council Code of Conduct.

d) 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 Code of Conduct and Misconduct Procedures or other relevant policy or procedure.

3.  Informal Complaints Process

3.1  An informal Complaint process is recommended where:

a) The alleged behaviour is/was not violent and addressing it with the Respondent will not create an unsafe circumstance for the Complainant; and/or

b) the Complainant simply wants to make it clear that the behaviour is unwanted and wants it to cease.

3.2  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.

3.3 The Complainant may approach their supervisor or next level manager to request support to address the behaviour.

3.4  In the case of a staff member Respondent, a supervisor may also have responsibilities to address the Complaint informally in accordance with clause 48.2 Initial Informal Action- misconduct of the JCU Enterprise Agreement 2016.

3.5  Potential outcomes of an informal process may include, but not limited to:

a) an apology;

b) an agreement between the parties on acceptable behaviour;

c) resetting expectations of behaviour for all parties by the supervisor or next level manager;

d) undertaking internally provided training programs;

e) participation in Alternative Dispute Resolution (ADR) as per section 6 below; and/or

f) refer the matter as per section 7 of this procedure.

3.6  The informal Complaint process will be carried out in good faith and according to the principles of natural justice. 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

4.1  A Complaint may be made under the formal Complaint’s process regardless of whether an informal Complaints process has been instigated earlier.

4.2  The formal Complaints process option may be appropriate where:

a) informal attempts at resolution have failed, or have not been pursued;

b) the Complainant is alleging that the inappropriate behaviour being complained about is victimisation or reprisal action as the result of an earlier Complaint;

c) 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;

d) 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;

e) in the case of a Respondent who is a Student, the Complaint involves allegations which could constitute a serious breach of the Student Code of Conduct.

4.3  A staff member or Affiliate can initiate a formal Complaint relating to a breach of the Policy by completing the Bullying, Discrimination, 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.

4.4  Upon receipt of a formal Complaint, the supervisor or next level manager should seek advice from the Human Resources Consultant or Human Resources Business Partner, on an appropriate approach to respond.

4.5  The response to a formal Complaint may include:

a) a method of Alternative Dispute Resolution; or

b) investigation (see section 5); or

c) refer the matter as per section 7 of this procedure.

4.6  The formal Complaint process will be carried out in good faith and according to the principles of natural justice. 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

5.1  If the supervisor/next level manager (in consultation with the Human Resources Business Partner) determines a formal investigation is necessary, an appropriate investigator will be appointed.

5.2  To afford Natural Justice to both the Complainant and Respondent, the investigator will ensure that:

a) the Complainant and Respondent receive information about the standard of conduct expected during an investigation process, including confidentiality;

b) the Respondent is fully apprised of the allegations against him or her;

c) all issues are investigated;

d) all participants in the investigation are informed of information relevant only to their participation in the investigation;

e) the Complainant and the Respondent have the right to be heard and be treated impartially and without bias;

f) the Complainant, Respondent and any interviewees are afforded the right to a Representative at discussions or interviews throughout the process;

g) the investigation report is confidential and will not be released to any parties, unless required under law, but may be used to form  allegations as part of any disciplinary processes.

5.3  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 other than to the Respondent or Complainant (on a confidential basis) where reasonably necessary to afford natural justice to the parties in accordance with clause 5.2.

5.4  The investigator will generally make a finding about the allegation of behaviour which may be in breach of the Policy, in which case the Complainant and the Respondent will be notified in writing whether the allegation/s is/are substantiated or not and the reason for this determination.

5.5  Other parties involved in the investigation will receive communication to confirm their involvement has concluded or the investigation process has concluded.

5.6  On completion of an investigation, and if the allegations are substantiated, the relevant manager will determine appropriate actions, which may include but are not limited to:

a) the Complainant and the Respondent participate in an Alternative Dispute Resolution (ADR);

b) training;

c) resetting expectations of behaviour by the supervisor; or

d) other options as deemed appropriate to the circumstances; or

e) refer the matter as per section 7 of this procedure.

6.  Alternative Dispute Resolution

6.1  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.

6.2  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.

6.3  Alternative Dispute Resolution may include:

a) 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.

b) 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.

c) 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

7.1  While Staff and Affiliates are strongly encouraged to use JCU’s internal complaint management options outlined in this Procedure, 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

8.1  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.

8.2  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 file.

8.3  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

9.1  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 a Complaint and all information and associated processes as confidential.

9.2  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.

9.3  Staff should also be aware, that where a matter is referred for management under Clause 48 (Misconduct/Serious Misconduct) of the JCU Enterprise Agreement 2016, clause 48.1 (e) will apply namely:

a) 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 an Act;
• 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 and as agreed with the University; 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.

9.4  The University will use de-identified information about the incidences of bullying, discrimination and harassment for reporting purposes.

10. False Allegations and/or Vexatious Complaints

10.1 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.

10.2 If the Complaint is found to be Vexatious, the University may take action against the Complainant under the University's misconduct procedures contained within the JCU Enterprise Agreement.

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.

Bullying, Discrimination, Harassment and Sexual Misconduct Policy

Code of Conduct

Information Communication Technology Acceptable Use Policy

James Cook University Enterprise Agreement

Sexual Misconduct Procedure

Student Code of Conduct

Schedules/Appendices

Bullying, Discrimination and Harassment – Staff and Affiliates Formal Complaint Form

Administration

Approval Details

Revision History