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To provide a framework for staff members and associates to deal with behaviour which may constitute unlawful discrimination, sexual harassment or victimisation under Commonwealth, Victorian Anti-Discrimination, Equal Opportunity legislation or the Equity and Diversity Policy.

Responsible Officer: Deputy Vice-Chancellor (Academic)
Implementation Officer: Director, Equity and Diversity Unit

First approved by:
Vice-Chancellor on 1 November 2012

Amendments approved by:




Discrimination or Sexual Harassment Complaints by Staff Members and Associates Procedure


This procedure was approved by the Vice-Chancellor on 1 November 2012.
This is pursuant to the Equity and diversity Policy.
PURPOSE

To provide a framework for staff members and associates to deal with behaviour which may constitute unlawful discrimination, sexual harassment or victimisation under Commonwealth, Victorian Anti-Discrimination, Equal Opportunity legislation or the Equity and Diversity Policy.

SCOPE

This applies to staff members and associates of the University. Other procedures apply to complaints made by or against students.

DEFINITIONS

Associate: Contractor, volunteer, visiting appointee or visitor to the University.

Complaint: a statement that something is unsatisfactory or unacceptable.

Complainant: a person who lodges a Complaint or on whose behalf a Complaint is lodged.

Contractor: a company or an individual (other than a University employee) engaged to provide services to the University. Contractors include consultants.

Discrimination: as defined in the Equal Opportunity Act 2010 (Vic), Age Discrimination Act 2004 (Cth), Disability Discrimination Act 1992 (Cth), Racial Discrimination Act 1975 (Cth), Sex Discrimination Act 1984 (Cth). Generally described as the unfair or unfavourable treatment of a person because of a personal characteristic or Attribute, real or imputed, including the setting of a requirement, condition or practice that is unreasonable and that people with a particular characteristic cannot meet.

Harassment and Discrimination Contact Officer: a person who provides information and support to an individual who believes they may have been subjected to or accused of unlawful conduct.

Member of the University: any person within section 4(3) of the Deakin University Act 2009 and includes the Council; staff, graduates; students; emeritus professors of the University and, for the purposes of this policy, prospective students and staff.

Respondent(s): the person or persons against whom a Complaint has been made.

Sexual Harassment: as defined in the Sex Discrimination Act 1984 (Cth), a person sexually harasses another person (the person harassed) if:

    1. the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or
    2. engages in other unwelcome conduct of a sexual nature in relation to the person harassed;
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Staff: as defined in section 3 Deakin University Act 2009, any person employed by the University.

Support Person: a person chosen by the complainant or respondent(s) who will assist them by providing support during any stage of a complaint.

Victimisation: any form of detriment directed at a person for alleging, making or participating in, supporting or resolving a complaint of discrimination, sexual harassment or victimisation; or a person associated with a person who alleges, makes or participates in, supports or resolves a complaint of discrimination, sexual harassment or victimisation.

Visitor: anyone engaged in lawful activity while at University campuses.

Workplace: any place where a person attends for the purpose of carrying out any functions in relation to his or her employment. In the University context, this includes all work-related activities at all campuses as well as off-campus if the activities are directly related to a staff member’s employment.

PROCEDURE
1A staff member or associate who believes they may have experienced discrimination, sexual harassment or victimisation related to their employment at the workplace or while engaged in lawful activity at the University should in the first instance contact their manager, senior manager or the Equity and Diversity Unit to discuss their complaint.
2At any time a staff member or associate may seek assistance from a Harassment and Discrimination Contact Officer or the National Tertiary Education Union.
3At any time a staff member or associate has the right to a support person other than an Australian legal practitioner or a person who is undergoing practical training for the purposes of being admitted to the legal profession.
4Information should only be disclosed to those legitimately involved in resolving the complaint
5At any time the manager or senior manager may consult the Equity and Diversity Unit for information on discrimination, sexual harassment or victimisation.
6If after initial consultation, the Director, Equity and Diversity Unit or nominee considers the alleged behaviour poses a serious risk to a member of the University, they may:
  1. make appropriate recommendations, taking into account the safety and identity of the complainant and the respondent
  2. refer the staff member or associate to the relevant Head of School if the respondent is a student (and therefore not within the scope of this procedure)
  3. refer the staff member or associate to a Harassment and Discrimination Contact Officer for assistance in resolving their complaint through Stage 1 or Stage 2 of this procedure
  4. recommend the matter be formally investigated under Stage 3 – formal investigation.
7If in the opinion of the Director, Equity and Diversity Unit or nominee, or the staff member’s manager, a workplace issue has been identified, the Director, Equity and Diversity Unit or nominee may consult with the University Solicitor and/or the Director of the Human Resources Division. The Director, Equity and Diversity Unit may then, in conjunction with the staff member’s relevant manager(s), initiate preventative measures as appropriate, taking reasonable steps to protect the confidentiality of the original information and the identity of the complainant.
8At any time, a staff member or associate may take their complaint to an external agency. Should that occur, any internal process may be deferred or suspended until a determination or outcome is reached in the external forum. The Director, Equity and Diversity Unit or nominee will confirm in writing to the complainant and respondent(s) if any internal process is to be deferred or suspended and the reasons why.
9At any time, if a staff member or associate does not wish to pursue their complaint further under this procedure, they are requested to notify the Director, Equity and Diversity Unit or nominee, in writing who will take any appropriate steps necessary.
Stage 1 – Informal Resolution
10A staff member or associate is encouraged to resolve concerns locally and informally within a reasonable time period and may discuss alleged instances of discrimination, sexual harassment or victimisation with a Harassment and Discrimination Contact Officer, their manager or senior manager, who will:
  1. help clarify the allegations being raised
  2. inform them of their rights and responsibilities under the University’s policies and procedures and the options available to address their concerns
  3. identify relevant information and resources that may be useful
  4. explore strategies for resolving their concerns
  5. keep confidential notes in a secure location.
11After discussing the matter with a Harassment and Discrimination Contact Officer, their manager or senior manager, the staff member or associate may choose to resolve the issue directly with the other person, with the assistance of the Harassment Discrimination Contact Officer, their manager or senior manager, if required. Resolution may include but is not limited to:
  1. clarification of a misunderstanding
  2. agreement for the behaviour to stop
  3. the person being made aware of appropriate behaviours in the Workplace
  4. establishment of clearly defined roles, responsibilities and boundaries
  5. change of reporting lines
  6. training and/or counseling
  7. an apology.
12If no resolution occurs at Stage 1, the staff member or associate may choose to either:
  1. discontinue the complaint by advising the Harassment Discrimination Contact Officer, their manager or senior manager of their wish to do so; or
  2. seek assistance from the Equity and Diversity Unit in resolving the complaint by conciliation (Stage 2); or
  3. request that the Equity and Diversity Unit formally investigate the complaint (Stage 3).
Lodging a Complaint
13To pursue either 12b or 12c above, the staff member or associate must:
a. complete a Discrimination or Sexual Harassment Complaints Form for Staff and Associates stating as clearly as possible all details of the complaint to allow the respondent(s) to understand the case and allegation(s) being made against them. The complaint must include:
    1. the names of any and all respondents
    2. the behavior that is alleged to give rise to the allegation of discrimination or harassment, including dates, the basis upon which it is alleged that the behavior is allegedly discriminatory
    3. the steps undertaken to date in an attempt to resolve the complaint
    4. any supporting documentation.
b. lodge their written complaint with the Equity and Diversity Unit
c. confirm whether they wish their complaint to be dealt with by conciliation (Stage 2) or formal investigation (Stage 3)
d. consent to their identity being revealed to the respondent(s)
e. consent to a copy of the complaint being provided to the respondent(s) (insofar as it is relevant to each respondent).
14All complaints should be lodged as soon as possible, but generally not later than 12 months after the date on which the alleged discrimination, sexual harassment or victimisation took place.
15On receipt of a complaint form, the Director, Equity and Diversity Unit or nominee will consider whether any allegations fall outside the jurisdiction of the Equity and Diversity Policy and procedures. If so, the Director, Equity and Diversity Unit or nominee will liaise with the appropriate organisational area and agree on a process to be followed to ensure that all allegations are investigated simultaneously.
16The Director, Equity and Diversity Unit or nominee will formally acknowledge the complaint as soon as practicable and will proceed to either:
a. inform the complainant and organisational area in writing that their complaint falls outside the scope of this procedure and is best investigated under another University procedure; or
b. Initiate conciliation (Stage 2) by:
    1. providing the respondent(s) with a copy of the complaint (insofar as it is relevant to that respondent) and this procedure
    2. explaining the aim of the conciliation process and the role of all parties
    3. seeking the respondent(s) confirmation that they are prepared to engage in the conciliation process and, if so, providing an opportunity for the respondent(s) to provide a written statement in response to the allegations within 5 working days of receipt; or
c. Initiate a formal investigation (Stage 3).
17If the complainant is satisfied that the respondent’s written statement resolves the issue, the complainant and respondent may agree in writing to discontinue the conciliation process and consider the matter resolved.
18If the respondent(s) does not wish to engage in the conciliation process the Director, Equity and Diversity will advise the complainant, who may choose to:
  1. discontinue the complaint by advising the Director, Equity and Diversity Unit or nominee in writing of the wish to do so; or
  2. request the Equity and Diversity Unit to initiate a formal investigation of the complaint (Stage 3).
Stage 2 – Conciliation
19Any process of conciliation should be completed within a reasonable time period having regard to all the circumstances of the complaint, but usually within 20 working days of the respondent(s) being advised of the allegations against them.
The Resolution Process
a. Where the respondent(s) confirms they are willing to engage in the conciliation process and has provided a written statement, the Director, Equity and Diversity Unit or nominee will:
    1. provide the complainant with a copy of the respondent(s) written statement
    2. advise both the complainant and respondent(s) in writing of the proposed action to be taken to seek resolution to the allegations raised and timelines for resolution
    3. seek to arrange meetings individually and/or jointly between the complainant and the respondent(s) where resolution of the issues will be attempted.
b. To resolve the complaint, the complainant and respondent(s) may agree:
    1. on future conduct and interactions by either or both parties
    2. to a process to monitor any agreed resolution.
c. The parties must agree not to subject each other or any other party to victimisation of any kind
d. Where the parties agree to a resolution of the complaint, the Director, Equity and Diversity Unit or nominee will prepare a written record of the agreement. Each party will be provided with a copy for signature and a copy signed by both complainant and respondent(s) will also be held by the Director, Equity and Diversity Unit or nominee
e. The Director, Equity and Diversity Unit or nominee will contact the complainant and respondent(s) two months after the written agreement was signed to establish whether the agreement has been complied with
f. If the complainant and respondent(s) have complied with the written agreement, the matter will be closed and the Director, Equity and Diversity Unit or nominee will confirm this in writing to both parties.
20If the respondent(s) does not provide a written statement or if no resolution occurs the complainant may choose to:
  1. discontinue the complaint by advising the Director, Equity and Diversity Unit or nominee in writing of the wish to do so; or
  2. request the Equity and Diversity Unit to initiate a formal investigation of the complaint (Stage 3).
21If the complainant or respondent(s) alleges that either party has not complied with any written agreement they should contact the Equity and Diversity Unit who will advise the parties of further options for resolution.
22If allegations of victimisation are received from either the complainant, respondent(s) or any other party, the Director, Equity and Diversity Unit or nominee may after consultation with the University Solicitor:
    1. initiate disciplinary action under the Staff Discipline Policy; and/or
    2. take any steps necessary to ensure the prevention of any further behaviour that is contrary to the University’s policies; and/or
    3. take other action as they see fit.
Stage 3 – Formal Investigation
23If the staff member or associate requests a formal investigation of the allegations, the Director, Equity and Diversity Unit or nominee will consult with the University Solicitor.
24If, after consultation with the University Solicitor, the Director, Equity and Diversity Unit or nominee believes that the complaint, even if proved, would not breach anti-discrimination legislation or relevant policy to which this procedure relates, the Director, Equity and Diversity Unit or nominee will inform the complainant in writing of this decision and reasons why no formal investigation will be undertaken.
25If after consultation with the University Solicitor, the Director, Equity and Diversity Unit or nominee believes the complaint may, if proved, breach anti-discrimination legislation or any relevant policies, the Director, Equity and Diversity Unit or nominee will immediately refer the complaint to the Vice-Chancellor with a recommendation on whether a formal investigation should take place.
26If the Vice-Chancellor or nominee determines that a formal investigation should be conducted the Vice-Chancellor or nominee will write to the complainant confirming that the University is to carry out a formal investigation in accordance with Stage 3 of this procedure and that the investigation will normally be completed within 30 working days of the respondent(s) being advised of the allegations against them.
27The Director, Equity and Diversity Unit or nominee will inform the Director, Corporate Governance, Risk and Compliance Services that a complaint has been received.
28If the Vice-Chancellor or nominee determines that a formal investigation shall not take place they will confirm in writing to the complainant that the University will not carry out a formal investigation in accordance with Stage 3 of this procedure and the reasons why, within 5 days of the making the decision.
29If the complainant is subjected to any further unlawful behaviour by the respondent(s) they must advise the Director, Equity and Diversity Unit or nominee as soon as possible.
Preparing for the Investigation
30Where a formal investigation is to be conducted and having regard to the circumstances of the case, the Vice-Chancellor or nominee will appoint a suitably qualified member of the University to act as Executive Officer who will assist with the administrative functions and organisation of the investigation.
31The Vice-Chancellor or nominee will as soon as practicable in writing, inform the respondent(s) of the allegations against them and any other action to be taken and will provide the respondent(s) with a copy of the complaint form and any witness evidence upon which the complainant seeks to rely (insofar as it is relevant to each respondent).
32The respondent(s) will have a reasonable time period to provide a written statement in response to the complaint and any witness evidence upon which it seeks to rely, usually 5 working days of receiving the complaint. The respondent(s) will also provide a list of any witnesses they wish to call and the reasons why.
33Upon receipt of the respondent’s written statement and witness evidence the Executive Officer will provide a copy to the complainant.
34If the allegations are admitted in full the Vice-Chancellor or nominee will proceed to make a determination as if a finding had been made by the Enquiry Panel (clause 51).
35If the allegations are not admitted in full or the respondent(s) does not provide any written statement the Vice-Chancellor or nominee will constitute an Enquiry Panel whose terms of reference will be to investigate, on the balance of probabilities, the allegations raised in the complaint and to make a factual finding in respect to each allegation.
The Enquiry Panel
36The Enquiry Panel will comprise three members nominated by the Vice-Chancellor or nominee; the members will normally be members of the University, but having regard to the relevant circumstances, including the nature and seriousness of the allegations, one of the members may be external to the University. One of the members of the Enquiry Panel will be appointed to act as Chair.
37The following persons are not to be members of the Enquiry Panel:
  1. any person who has a conflict of interest, including someone who has been involved in the complaint or involved in the conciliation process of the complaint
  2. staff members from the same organisational area as either the complainant or the respondent(s).
38In addition to the Enquiry Panel members, the following will be observers at any hearings:
  1. Director, Equity and Diversity Unit (or nominee)
  2. Executive, Director Human Resources Division (or nominee)
  3. Executive Officer, who shall be responsible for taking a record of the proceedings.
39In performing any function under this procedure, the Enquiry Panel members must:
  1. act in the best interests of the University
  2. immediately declare any actual or perceived conflict of interest to the Executive Officer.
40The nature and scope of the investigation conducted by the Enquiry Panel will be determined by the Enquiry Panel with reference to all relevant circumstances, including the nature and seriousness of the allegations. The Enquiry Panel is not bound by the rules of evidence and may make any and all enquiries that it considers appropriate, and may inform itself in any manner that it sees fit, using any technologies or modes of communication.
41If appropriate, and having regard to all circumstances of the investigation, the Enquiry Panel may convene for a prehearing to:
  1. discuss matters relevant to the investigation
  2. agree on any further enquiries believed to be relevant
  3. request the Executive Officer to seek information or material they believe will be relevant to the investigation (i.e. human resources or other University records).
42If it believes their evidence may prove or disprove any allegations or assist the investigation in any other way, the Enquiry Panel may at its discretion request the Executive Officer to invite any of the following to appear before it or provide input in a relevant manner:
  1. any witnesses identified by the complainant
  2. any witnesses identified by the respondent(s)
  3. any member of the University.
43Having regard to all the circumstances of the investigation the Enquiry Panel will advise the Executive Officer of the information it wishes to be disclosed to any witness or member of the University who is invited to participate in the hearing.
The Formal Investigation
44The complainant, respondent(s) and any witness will have the right to be accompanied by one other person or staff member of the University, other than an Australian legal practitioner or a person who is undergoing practical training for the purposes of being admitted to the legal profession, and that person will have the right to be heard in support of the person they accompany.
45The Enquiry Panel is not bound by the rules of evidence but will afford the parties natural justice in the process. It can inform itself in any manner it considers appropriate. In particular, it will ensure that:
  1. each party is heard individually, and will have the opportunity to make comments to the Enquiry Panel.
  2. all allegations are investigated thoroughly
  3. all relevant enquiries are made
  4. any additional information it believes relevant to the investigation is requested.
46The Enquiry Panel should seek to agree unanimously on their findings; however, the Chair will have a casting vote.
47The hearing may be adjourned at any time, but the same Enquiry Panel Members must be reconvened to continue the hearing as soon as reasonably practicable.
48Upon completion of its formal investigations the Enquiry Panel will prepare a written report for the consideration of the Vice-Chancellor or nominee, which will include:
a. a finding (made on the balance of probabilities) that in full or in part:
    1. the allegations are not proven; or
    2. the allegations are proven; or
    3. it was not possible to make a conclusive finding.
b. reasons for its findings; and
c. any appropriate and relevant recommendations.
49The Chair of the Enquiry Panel will provide the Enquiry Panel’s report to the Executive Officer, usually within 5 working days of the hearing.
50The Executive Officer will immediately provide a copy of the Enquiry Panel’s report to the Vice-Chancellor.
Determination
51When making a determination the Vice-Chancellor or nominee will consider the following:
  1. outcomes requested by the complainant
  2. any admissions made by the respondent (if applicable); and
  3. the findings and any recommendations made by an Enquiry Panel.
52The Vice-Chancellor or nominee will advise the complainant, respondent(s) and the Director, Equity and Diversity Unit or nominee, in writing of the determination, the reasons for the decision and any further action to be taken, within 5 working days of receipt of the Enquiry Panel’s report.
53If the complaint is not substantiated and is found to have been made in circumstances that indicate bad faith on the part of the complainant, the Vice-Chancellor or nominee may reprimand the complainant or take other action as they see fit.
54The Director, Equity and Diversity Unit or nominee will ensure, so far as is practicable, that the complainant and respondent(s) or any other party involved in the formal investigation are not subjected to victimisation of any kind by any person as a result of the complaint having been made. If, in the opinion of the Director, Equity and Diversity Unit or nominee in consultation with the University Solicitor, victimisation is alleged to have occurred the following action may be taken by the Vice-Chancellor or nominee:
  1. Initiation of disciplinary action under the Staff Discipline Policy
  2. any steps necessary to ensure the prevention of any further behaviour that is contrary to the University’s policies
  3. other action as they see fit.
55The Director, Equity and Diversity Unit or nominee will monitor the outcomes of actions relating to the Determination and will report on progress to the Vice-Chancellor or nominee within 2 months of the decision being made.
56No appeal can be made against the determination. If either party is dissatisfied with the outcome of the investigation, they may choose to refer the matter to an external authority.
57The Equity and Diversity Unit will maintain all documentation and records relating to any formal investigation.
Formal Notification
58Where the University is required to give notice to a person of a matter arising out of Equity and Diversity Policy or this procedure, unless otherwise specified, that notice will be deemed to have been given if it is in writing and:
  1. sent to the persons allocated university email address (if they have one); or
  2. hand delivered to that person; or
  3. delivered by courier to the person at the address provided by that person and recorded by the University as being their current residential address; or
  4. posted by registered or express post to the person at the address provided by that person and recorded by the University as being their current residential address.
Monitoring of Complaints
59The Equity and Diversity Unit will, on an annual basis, report to the Vice-Chancellor and the Director Corporate Governance, Risk and Compliance Services on all complaints lodged by staff or associates to which this procedure relates that reach Stage 2 or Stage 3 and provide any information on trends, systemic issues, improvements identified and any remedial or preventative actions as appropriate.
Review of Procedure
60The Equity and Diversity Unit will review this procedure in accordance with University policy to ensure it is consistent with current Commonwealth and state legislation and University policies and procedures.
ASSOCIATED INFORMATION

Age Discrimination Act 2004 (Cth)
Australian Human Rights Commission
Deakin University Act 2009
Disability Discrimination Act 1992 (Cth)
Discrimination and Sexual Harassment Complaints Form for Staff and Associates
Effectively preventing and responding to sexual harassment: A Code of Practice for Employers.
Equal Opportunity Act 2010 (Vic)
Equity and Diversity Policy
Fair Work Ombudsman
Privacy Policy
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Staff Discipline Policy
Victorian Equal Opportunity and Human Rights Commission



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