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Policy Number: 1.70.2
Contact Officer: Director Equity Office
Date Approved by Senate: 29/09/2005
Date last amended: 24/4/2008
Date for Next Review: 29/09/2008
Overview
This policy is currently under review.
1.1 Sexual harassment is a form of discrimination and, when it falls within the relevant statutory definition, is unlawful under the Queensland Anti-Discrimination Act 1991 and under the Commonwealth Sex Discrimination Act 1984. It most often occurs in relationships of unequal power or authority as in staff/student and supervisor/subordinate relationships, although it also takes place between peers (student/student or employee/employee).
Description
2. What is sexual harassment?
2.1 The University has adopted the following definition of sexual harassment[1]:
Sexual harassment happens if a person –
(a) subjects another person to an unsolicited act of physical intimacy; or
(b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or
(c) makes a remark with sexual connotations relating to the other person; or
(d) engages in any other unwelcome conduct of a sexual nature in relation to the other person and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so–
(e) with the intention of offending, humiliating or intimidating the other person; or
(f) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.
Examples of (a),
- Physical contact such as patting, pinching or touching in a sexual way
- Unnecessary familiarity such as deliberately brushing against a person
Examples of (b)
Examples of (c)
- Unwelcome and uncalled for remarks or insinuations about a person's sex or private life
- Suggestive comments about a person's appearance or body
Example of (d)
- Offensive phone calls
- Indecent exposure
Other examples include
- A publication such as offensive e-mails or graphics
- Offensive screensavers or posters
The circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include–
(a) the sex of the other person; and
(b) the age of the other person; and
(c) the race of the other person; and
(d) any impairment that the other person has; and
(e) the relationship between the other person and the person engaging in the conduct; and
(f) any other circumstance of the other person.
The University also treats as sexual harassment the creation of an environment that is hostile to a person in a sexual context (that is it involves the effects in paragraphs (e) and (f) of the definition above).
Sexual harassment can occur in a single incident or a persistent pattern of unwelcome behaviour. Sexual harassment is not confined to any gender or sexuality.
2.2 Sexual harassment does not generally arise in consensual relationships. Consensual relationships or relationships of mutual attraction between people are based on genuine choice and consent. However, in situations of unequal power and authority (as in relationships between academic supervisors and students) there is often a danger that apparent "consent" might be based on intimidation or fear. For example, a student or employee may ‘consent' to advances from fear of an academic or employment penalty. If it can be shown that fear or intimidation is present in an otherwise consensual relationship, then sexual harassment may become an issue.
University policy on Personal Relationships in the Workplace provides that personal relationships involving staff, students or others in the University environment "should not intrude on, be seen to intrude on or influence workplace practices", and that where such situations develop it is advisable for the staff member to withdraw from the supervisory relationship. University officers have a responsibility to foster an environment of trust and respect as the basis of appropriate professional relationships. 3. Confidentiality
3.1 All people handling sexual harassment enquiries and complaints must take care to maintain confidentiality. People who consider they have been sexually harassed (in this document called claimants) when seeking information need not disclose their own identity or that of alleged offenders (in this document called respondents) during an initial interview with a Discrimination and Harassment Contact Officer or other first contact designated officer.
3.2 A complaint of sexual harassment may have serious consequences, so a complaint that identifies the respondent must be confined to those whose responsibilities or involvement make disclosure to them reasonable. This includes persons involved in the resolution process. It will also include the claimant's or respondent's supervisor (if they need to take action to resolve the matter).
3.3 Where an allegation is of a sufficiently serious nature it may be necessary for the Discrimination and Harassment Contact Officer or other first contact designated officer to notify either the Director, The Equity Office or the Senior Deputy Vice-Chancellor .
4. Defamation
4.1 A complaint of sexual harassment is a serious matter which is likely to reflect adversely on the reputation of the respondent. A publication sufficient to establish defamation occurs whenever a person (whether the claimant or someone else) communicates the complaint in any way, to anyone other than the respondent. Such a complaint is likely to amount to defamation unless a defence can be established.
4.2 It is a defence to defamation to show that:
- the publication was made in good faith[2] ; and
- the person to whom it was made had such an interest in knowing the truth as to make its disclosure reasonable.
4.3 Persons involved in the Sexual Harassment Grievance Procedures process will have the required interest to make disclosure reasonable. So too will the respondent's supervisor and relevant senior University officers and advisers.
4.4 Given the risk of liability for defamation, confidentiality must be strictly observed and University procedures adhered to. Only those with a legitimate interest should be informed. If a doubt exists, it is preferable to err on the side of caution and consult a more senior officer. A breach of confidentiality by anyone involved in these procedures may be regarded as a breach of discipline.
4.5 Provided that these procedures are followed and the persons handling the complaint at all times act in accordance with their duties and in good faith, staff are indemnified by the University's insurers against any loss or damage incurred as a result of legal action taken against them for defamation.
5. Victimisation
5.1 The University will not tolerate victimisation of a person who lodges a grievance, who is the subject of a grievance or who is a witness in an official investigation of a grievance involving sexual harassment. Victimisation should be reported to the Senior Deputy Vice-Chancellor.
6. Accountability of Supervisors and Managers
6.1 Supervisors and managers should be alert to the damage that sexual harassment and other forms of harassment or discrimination can cause to individuals and the University community generally. They are responsible for promoting a sexual harassment free environment within their area of authority, and for implementing reasonable steps to prevent disruptive incidents. They are expected to support the policy actively. They are required to:
- ensure all staff and students in their area of responsibility are familiar with the University's sexual harassment policy;
- ensure their own behaviour provides a role model consistent with the policy; and
- assist the work of Discrimination and Harassment Contact Officers and Mediator/Conciliators.
6.2 If a manager or supervisor learns of behaviour that could constitute sexual harassment occurring within their area of responsibility they should advise those involved that the behaviour could give offence and that it should cease immediately. It is important for the effectiveness of the University's processes that supervisors do not unilaterally seek to deal with any but the most straightforward incidents themselves. If in doubt, supervisors and managers should consult with The Equity Office. Supervisors and managers should adhere to the principles of natural justice in discussing allegations of sexual harassment.
Supervisors may also be asked to play an important role in securing a satisfactory outcome when complaints are being resolved.
7. Seeking information about sexual harassment
7.1 The University has designated a number of Discrimination and Harassment Contact Officers (DHCOs) in locations across the University campuses who are normally the first point of contact for anyone seeking assistance about sexual harassment. The role of DHCOs is to provide information and options to people involved in sexual harassment cases, but not to advise, adjudicate, advocate, mediate or conciliate. Advice on sexual harassment policies and procedures may be obtained from a variety of other sources including The Equity Office, Human Resources Division, and from appropriate external agencies. Staff and students may consult and receive support from their union (also see the frequently asked questions included with this policy). 8. Resolving issues of sexual harassment
8.1 Resolution of sexual harassment complaints at the level where the complaint is made is in most cases the option preferred by the University to speed resolution and minimise potential harm.
8.2 A person who considers that they have been sexually harassed should approach a Discrimination and Harassment Contact Officer in the first instance, for information on resolution options. These include:
- Resolution initiated and carried out by the claimant.
- Resolution facilitated by a qualified mediator/conciliator.
- Resolution by the Senior Deputy Vice-Chancellor which may involve inquiry or investigation.
- Complaint to a body external to the University.
8.3 Resolution initiated and carried out by claimant. The claimant may seek to resolve the problem personally with respondent/s. A Discrimination and Harassment Contact Officer will provide information about options, including alternative strategies that may resolve the issue at this level, but will not be involved in resolution through advising, adjudicating, advocating, mediating or conciliating for the complainant and respondent.
8.4 Resolution facilitated by a mediator/conciliator (see section 9 for time limits). If a complaint is not resolved after initial enquiries and the complainant wishes to pursue the issue, then a written complaint should be lodged with The Equity Office. The respondent will be informed promptly of the complaint by being provided with a copy of the written complaint and information regarding the University’s policies and procedures. The respondent will also be provided with the opportunity to make a response.
Resolution of the complaint may then be undertaken. The Director, The Equity Office will normally refer the matter to an independent, qualified internal or external mediator/conciliator (see 9.3). The mediator/conciliator will seek to mediate and/or conciliate the matter. This may be done either through separate interviews with each party or through a joint meeting with both parties. Each will be given time to prepare for the mediation/conciliation.
The Mediator/Conciliator may also seek the involvement of an appropriate University officer if it appears that this will assist the process.
If the matter is resolved, a note recording the resolution is to be signed by both parties. Any agreed resolution must comply with relevant legislation and University policy. It is expected that the agreed solution will be binding on the parties and once implemented, no further action may need to be taken within the University on the complaint.
8.5 Resolution by the Senior Deputy Vice Chancellor (see section 9 for Time limits). If a complaint is not resolved by mediation/conciliation then it will be dealt with by the Senior Deputy Vice-Chancellor.
The Senior Deputy Vice-Chancellor must determine whether to refer a complaint against a staff member for action under the relevant awards and industrial agreements as misconduct or serious misconduct (which may lead to dismissal). A complaint against a student may be dealt with as misconduct under Statute No 4 (which may lead to expulsion). In a very serious case, for example, when serious criminal behaviour is alleged, a complaint may be referred to external authorities.
8.6 Complaint to a body external to the University. A claimant may at any time choose to make a formal complaint to an external body, for example, to the Anti-Discrimination Commission Queensland. In this case the University would become a respondent but would continue to seek to resolve the matter if possible. The University may nevertheless cease its internal resolution processes in cases where the complaint has been referred to an external body.
There is an expectation by external anti-discrimination agencies that claimants will pursue the available internal procedures before approaching them. In some cases, external complaints may be pursued by approaching another representative body, such as a staff union.
9. Time limits for dealing with a sexual harassment matter
9.1 A claimant should seek to deal with a sexual harassment matter as soon as possible after an incident. A quick response will often reduce the likelihood of further problems arising.
9.2 Internal complaints should be made within three months of the date on which the last incident is alleged to have taken place. At the discretion of the Senior Deputy Vice-Chancellor this time period may be extended, particularly in the case of students who fear they may be compromised by making a complaint while their studies are still in progress. However complaints brought over 12 months after the last alleged incident normally will not be pursued.
9.3 When a complaint is lodged with The Equity Office, the Office will notify the named respondent/s within 3 working days and provide a copy of the complaint. The respondent will have a specified period to provide a reply (normally 10 working days). After the specified period, the Office will determine whether to refer the matter for mediation/conciliation or to the Senior Deputy Vice-Chancellor.
9.4 Once a complaint is referred to the Senior Deputy Vice-Chancellor the determination will normally be concluded within 15 working days of its referral, unless it is dealt with as misconduct or referred externally.
9.5 Complaints to the Anti-Discrimination Commission Queensland should be made within twelve months. This may be extended for good cause.
10. Officers involved
While it is the responsibility of all staff and students of the University to ensure the work and study environment is free from harassment of any kind, including sexual harassment, the following officers have specific responsibilities in the implementation of the University’s sexual harassment policy:
11. Discrimination and Harassment Contact Officers
11.1 A Discrimination and Harassment Contact Officer (DHCO) is generally the person to consult if a claimant or respondent needs information about policies and procedures and options in resolving the complaint. DHCOs are available on all campuses of the University. They provide information to those involved in sexual harassment matters, either as claimant, respondent, or witness. DHCOs can also provide information to managers and supervisors about policies and procedures. The DHCO will:
- Listen to and assist the claimant to clarify the nature of the problem. The identities of claimants and respondents need not be disclosed at this stage. Claimants are in control of whether to move to the next stage of the process and may choose not to act. However, claimants should be made aware that in some serious cases, in compliance with obligations under anti-discrimination legislation or elsewhere, the DHCO may be obliged to raise a matter with the Senior Deputy Vice-Chancellor who may take further action.
- Explore avenues available to a claimant for resolving the situation directly with the respondent. A DHCO may provide information about options but will not be involved in resolution through meetings or discussions with the complainant and respondent.
- Facilitate access to staff or student counselling (insert link 5.70.6 or StudentServices).
- Provide information on other discrimination, harassment and bullying grievance procedures that are outside the scope of this policy if appropriate to the case (see Discrimination and Harassment policy).
- Explain to a claimant or respondent the procedures available for dealing with the matter.
- Inform the claimant of their legal rights to refer the matter to the Anti-Discrimination Commission Queensland and provide details of procedures for lodging complaints.
- Prepare brief case notes of each enquiry or complaint on a Complaint Record proforma. These contain only brief factual details together with a record of immediate action taken and subsequent follow-up actions. Copies will not be kept by DHCOs. These proformas will be held securely and in confidence by The Equity Office (see 15 Records).
12. The Equity Office
12.1 The Senior Deputy Vice-Chancellor has overall responsibility for the University's Sexual Harassment procedures, and is assisted by The Equity Office.
The Equity Office will:
- co-ordinate, train, and advise Discrimination and Harassment Contact Officers;
- forward written complaints to respondents with information about their rights and responsibilities within the University’s policies and procedures, natural justice, victimisation, and how to access a Contact Officer;
- refer cases for mediation/conciliation;
- notify managers of the resolution of a complaint where appropriate;
- monitor cases that are resolved;
- maintain case files after the completion of the resolution process;
- liaise with appropriate officers when cases are to be referred to the Senior Deputy Vice Chancellor for resolution;
- implement education measures
- maintain the Discrimination and Harassment Contact Officer website and take responsibility for distribution of relevant literature eg. brochures;
- monitor legislative changes and precedents which may affect the University's sexual harassment policies and procedures;
- provide an annual report on the number of sexual harassment complaints and their resolution to inform future policy and education.
12.2 Mediation/Conciliation. Since mediation/conciliation requires both parties to be willing to participate in the process, the Mediator/Conciliator will first ensure that mediation/conciliation is possible. The Mediator/Conciliator will ensure that both parties have sufficient time to prepare themselves before engaging the process.
13. Senior Deputy Vice-Chancellor
13.1 The Senior Deputy Vice-Chancellor is responsible for overseeing the University's harassment resolution policy and procedures for dealing with sexual harassment complaints. These are reviewed periodically for efficiency, appropriateness to the needs of both claimant and respondent, and legislative relevance and legality.
13.2 The Senior Deputy Vice-Chancellor may undertake an inquiry or investigation of a complaint that has not been resolved through mediation/conciliation and make a determination. The Senior Deputy Vice-Chancellor may delegate responsibility for inquiry or investigation to another officer or to an appropriately qualified external investigator but remains responsible for determining the complaint.
Following a determination, both parties must be informed of a decision, , the reasons for it and their rights if dissatisfied with the decision.
13.3 The Senior Deputy Vice-Chancellor must determine whether to refer a complaint against a staff member for action under the relevant awards and industrial agreements as misconduct or serious misconduct (which may lead to dismissal).
13.4 The Senior Deputy Vice-Chancellor is also responsible for education strategies and the dissemination of appropriate information. The role is supported by the principles of respect for persons that appear in the University's Code of Conduct.14. Complaints about grievance procedures
14.1 A complaint about how a University officer is implementing the sexual harassment resolution process should be made in writing to the Senior Deputy Vice-Chancellor. The Senior Deputy Vice-Chancellor may require the officer/s concerned to remove themselves from the resolution process until the matter is satisfactorily resolved. If the complaint is about the Senior Deputy Vice-Chancellor it should be referred to the Vice-Chancellor.
15. Records
15.1 The Mediator/Conciliator will prepare a written agreement for signature by the complainant and the respondent, and supply a signed copy to each party. A further copy of the signed statement will be supplied to The Equity Office, to be held securely and in confidence for seven years from last notation or action after which it must be destroyed. The Director, The Equity Office, may supply a notification of the outcome[3] , to the appropriate Head/s of organisational units. The incident will not be recorded on staff personnel files or student records.
15.2 The Director, The Equity Office, will hold securely and in confidence all records of cases from Contact Officers. Where no action was taken the records will be destroyed seven years after last notation. Otherwise records will be kept until they are destroyed seven years after last notation[4].
15.3 When a case is transferred to the Senior Deputy Vice-Chancellor it will be accompanied by the relevant case record. All relevant documentation is kept on Restricted Files with access limited only to those who need to know as a necessary part of their duties.
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