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Sexual Harassment Policy

 

Approving Authority:

Council

Establishment Date:

Policy: October 1984; GPs: March 1987

Date Last Amendment:

Revised December 1986; Revised June 1994; Revised December 1997;
Revised 13 October 2005 (Counciil)

Nature of Amendment:

Revision of policy and grievance procedures; Clause 1 Scope, Part 2, Part 3, consequential nomenclature & clause numbering

Date Last Reviewed:

11 December 1997 (Council approval)

Publication Reference:

N/A

Contact Officer:

Equal Opportunity Unit

 

 

Table of Contents


Part 1
Part 2
Part 3
Part 4

Appendix 1

Policy Statement
Scope and Definitions
Implementation
Complaint Procedures
Other Issues
Glossary of Terms
Legislation

Sexual Harassment Policy Statement

The University aims to be recognised widely as a community-sensitive Australian university that is confident and supportive and which brings to its community a level of performance in teaching and research that meets exacting national and international standards.

In support of this aim the University is committed to creating a work and study environment which is free of sexual harassment for all members of the University community. The University regards sexual harassment as a serious breach of the Equal Opportunity Policy. It accepts its responsibilities under federal and state equal opportunity laws and will take all reasonable steps to ensure that no staff member or student subjects another person to or is subjected to sexual harassment whilst in the course of any university activity.

 

Part 1 - Scope And Definitions

1.

Scope

Flinders University has established this Sexual Harassment Policy to comply with the requirements of state and federal legislation and University policies and regulations.

This Policy applies to staff and students engaged in activities reasonably connected with their role at the University , including field trips, field work and social activities related to the University. Such activities may extend beyond the University campus.

This Policy does not automatically cover members of the University community undertaking work placements in other organisations. In the event that sexual harassment occurs under these circumstances the University will act as far as possible to protect the complainant, and will work jointly with the other organisation to investigate the complaint and take such precautions as are possible to prevent further incidents.

Sexual harassment in this context addresses matters which have a connection with the University in the course of University business, including but not necessarily limited to:

  • sexual harassment of students by University staff;
  • sexual harassment of students by other students;
  • sexual harassment of University staff by students ;
  • sexual harassment of University staff by other University staff;
  • sexual harassment of people applying to become students or University staff by current staff or students;
  • sexual harassment of former staff or students by current staff or students; and
  • sexual harassment of members of the public arising from contact with staff or students in the course of University business

The University has established a network of contact officers and conciliators who will provide information and assistance in the resolution of complaints of sexual harassment.

Legislation

Definitions and procedures used in this Policy are taken from the following documents:

  • S. A. Equal Opportunity Act, 1984
  • Commonwealth Sex Discrimination Act, 1984
  • The Flinders University Enterprise Certified Agreement 2004-2006
  • Statute 6.4: Student Conduct

2.

Definition of Sexual Harassment

Sexual Harassment is prohibited under both federal and state legislation and is described in the Acts as an unacceptable form of social behaviour. Full definitions from these Acts may be found in Appendix 1.

In brief, sexual harassment is any unwanted, unwelcome or uninvited behaviour of a sexual nature. Sexual harassment is defined by law from the perspective of the recipient and it occurs if the behaviour makes a person feel offended, humiliated or intimidated and it is reasonable in all the circumstances that the recipient would feel that way.

Examples of sexual harassment

Sexual harassment can take many different forms and may include physical contact, verbal comments, jokes, propositions, the display of offensive material, or other behaviour which creates a hostile working environment.

The Human Rights and Equal Opportunity Commission has listed the following examples of sexual harassment:

  • uninvited touching;
  • uninvited kisses or embraces;
  • smutty jokes or comments;
  • making promises or threats in return for sexual favours;
  • displays of graphic material including posters, pin-ups, cartoons, graffiti or messages left on notice boards, desks or common areas;
  • repeated invitations to go out after prior refusal;
  • 'flashing' or sexual gestures;
  • sex-based insults, taunts, teasing or name-calling;
  • staring, leering at a person or at parts of their body;
  • unwelcome physical contact such as massaging a person without invitation or deliberately brushing up against them;
  • requests for sex;
  • sexually explicit conversation;
  • persistent questions or insinuations about a person's private life;
  • offensive phone calls or letters;
  • stalking;
  • offensive e-mail messages or computer screen savers;
  • sexual assault.

Some of these actions are also defined as criminal acts.

Conduct at Flinders University

For the purpose of this Policy sexual harassment may include conduct which:

  • proposes an implicit or explicit condition that a person's academic evaluation or employment will be dependent on some sexual response; or
  • proposes an implicit or explicit condition that decisions which bear on a person's grades in academic evaluation or employment conditions will be dependent on some sexual response; or
  • has the purpose or effect of interfering with an individual's academic or work performance; or
  • creates an intimidating, hostile or offensive learning, academic or working environment.

Sexual harassment is NOT behaviour which is based on mutual attraction, friendship and respect.

3.

Vicarious Liability

State legislation provides that the University can be found vicariously liable for sexual harassment inflicted on others by its employees or agents.

As a defence against any finding of vicarious liability, the University will fulfil its commitment to educating members of the University community as to the nature and effects of sexual harassment and provide the necessary resources to inform its community as to the content of this Policy. It will provide through professional development, information sessions and publicity of this Policy an understanding of the rights and responsibilities of the individual. This includes the development and publicity of effective measures for the resolution of complaints.

In the event that the University is required to pay any sum, it will be paid initially by the University. The University may seek to recover this amount.

 

Part 2 - Implementation

The federal and state legislation requires the University to take all reasonable steps to prevent and eliminate sexual harassment, and to protect those who complain of victimisation.

An essential element in preventing sexual harassment involves raising awareness among members of the university community of their rights and obligations under this Policy. To this end the university has identified areas of responsibility and established procedures for providing information and training about these procedures.

The identified categories of responsibility include those of all staff and students, supervisors, Contact Officers, the Equal Opportunity Unit and Conciliators. The responsibility for providing information and training rests with the Equal Opportunity Unit together with the Division of Human Resources.

4.

Responsibility of all Staff and Students

4.1 Staff and students are responsible for ensuring that they do not subject other staff and students, or persons applying to become staff or students, to sexual harassment while involved in any University activity.

4.2 Staff and students are responsible for establishing a work and study environment which is free of sexual harassment.

5.

Responsibility of Supervisors

Supervisors of staff and students have a responsibility to maintain a work and study environment free of harassment by exercising appropriate leadership practices. Where instances of sexual harassment are identified supervisors have a responsibility to take appropriate action to remedy the problem.

6.

Responsibility of Contact Officers

The University has established a network of Contact Officers throughout the University to provide information and support for people on sexual harassment issues. Contact Officers do not conciliate cases of sexual harassment but may assist a complainant or respondent in an informal or formal resolution of a complaint.

Contact Officers are appointed by the Vice-Chancellor on the advice of the Equal Opportunity Unit. It is the responsibility of the Head, Equal Opportunity to ensure that Contact Officers are drawn from a broad range of occupational and study areas in the University.

Names, location and contact details of Contact Officers will be widely publicised to all staff and students via Equal Opportunity Unit, internal telephone directory, Flinders Equal Opportunity Unit web page, pamphlets, posters, student organisations and publications.

Any person may seek information and support on sexual harassment from a Contact Officer without necessarily making a complaint.

7.

Responsibility of the Equal Opportunity Unit

The Head, Equal Opportunity Unit and the Equal Opportunity Officer have responsibility to :

7.1 perform an educative role in the elimination of sexual harassment and to take action to implement this Policy;

7.2 take all reasonable steps to facilitate the conciliation and resolution of sexual harassment complaints;

7.3 select and arrange training for contact officers and conciliators;

7.4 develop and distribute publicity material to the University community;

7.5 assist in arranging awareness raising programmes and in the provision of training for staff and students on sexual harassment;

7.6 maintain confidential records on sexual harassment complaints;

7.7 monitor and evaluate the implementation of this Policy.

8.

Responsibility of Conciliators

Conciliators are trained to resolve complaints by conciliation. Conciliators are appointed by the Vice-Chancellor, on the advice of the Head, Equal Opportunity Unit. It is the responsibility of the Head, Equal Opportunity Unit to ensure that Conciliators are drawn from a broad range of occupational and study areas in the University.

Conciliators will be selected on the basis that they can demonstrate good negotiation skills and a well developed understanding of the University's Sexual Harassment Policy. The Head, Equal Opportunity Unit is responsible for the selection, training and provision of regular support for Conciliators in the implementation of this Policy.

Names, locations and contact details of Conciliators will be widely publicised to all staff and students via the Equal Opportunity Unit, internal telephone directory, Flinders University Equal Opportunity Unit web page, pamphlets, posters, student organisations and publications.

9.

Provision of Information and Training

The Equal Opportunity Unit, together with the Division of Human Resources, will provide regular information and training that will:

9.1 educate staff and students about what constitutes sexual harassment and about their responsibility not to sexually harass other staff and students;

9.2 provide information and training to managers and supervisors on meeting their responsibilities in relation to maintaining a work and study environment that is free of sexual harassment;

9.3 provide information and training to staff conducting teaching and learning activities on meeting their responsibilities in maintaining a study environment free from sexual harassment.

 

Part 3 - Complaint Procedures

For academic and general staff, please refer to the Individual Staff Grievance Policy and Procedures. The following procedures apply only to student complaints.

The University is committed to taking effective action to deal with complaints of sexual harassment by:

  • ensuring that complaints are dealt with in a sensitive, timely and confidential manner;
  • resolving complaints of sexual harassment within the University, by means of education, counselling and conciliation, using disciplinary action when required and as provided by this Policy;
  • ensuring that complaints are dealt with in accordance with principles of natural justice;
  • making every effort to provide protection for all members of the University community against victimisation or reprisals;
  • encouraging reports of behaviour which breach the Sexual Harassment Policy.
COMPLAINTS FROM:

Staff: Individual Staff Grievance Policy & Procedures

Students: EO Grievance Procedures for Complaints of Unlawful Discrimination & Harassment

 

Part 4 - Other Issues

10.

Confidentiality

It is essential to keep confidential all information about sexual harassment complaints during the resolution process and after the matter is concluded to ensure:

  • fair treatment and process;
  • protection of complainant and respondent;
  • minimisation of the risk of victimisation;
  • avoidance of defamation proceedings.

For these reasons, only those directly and legitimately involved in the resolution process should be informed about the details of a complaint and only then with the complainant's consent.

In the event that confidentiality is breached, the matter will be investigated by the Vice-Chancellor who will take appropriate action.

11.

Defamation

A complaint of sexual harassment which is brought to the attention of the respondent can sometimes result in the respondent threatening to take action for defamation.

Defamation is the publication of a statement about a person which causes that person's reputation with other people to be lowered, or causes them to be shunned, avoided or brought into ridicule.

If the statement is in a permanent form (eg in writing) the alleged defamation is libel; if it is not in a permanent form (eg oral statements) the alleged defamation is slander.

It is not defamatory for an individual to confront a harasser directly (either in person or by letter) to alert them that their behaviour is unwelcome. Nor is it defamatory to make a complaint to a person who has a legitimate interest in knowing about the incident in order to seek redress under this Policy (for example to a supervisor, a sexual harassment contact officer or conciliator, a counsellor).

Protection will be lost if the complaint is false, or is made in bad faith and is motivated by malice, for example made solely or largely with the intention of causing harm to the respondent.

In the University, managers, supervisors, sexual harassment contact officers and conciliators, and counsellors conveying information or otherwise taking action on a complaint are able to claim the defence of qualified privilege provided that they:

  • act in good faith and without malicious intent;
  • act strictly in accordance with the University's Sexual Harassment Policy and Procedures;
  • maintain confidentiality at all times and ensure that information about a complaint is communicated only in accordance with the University's Sexual Harassment Policy and Procedures.

12.

Victimisation

Victimisation is any attempt to subject a person to any detriment or threat of detriment because they have:

  • made, or propose to make a sexual harassment complaint under the University's Sexual Harassment Policy and Procedures;
  • furnished, or propose to furnish, information or documents to a Conciliator or formal investigation;
  • attended or propose to attend a conciliation conference;
  • appeared or propose to appear as a witness in a formal investigation;
  • reasonably asserted their own or another person's rights under the University's Sexual Harassment Policy and Procedures.

Victimisation is prohibited and action shall be taken, in accordance with the University's disciplinary procedures, against a person alleged to have victimised another.

13.

Vexatious Complaints

Any person who is found to have made a vexatious or malicious complaint will not be afforded protection by this Policy and Procedures and will be subject to the University's disciplinary procedures as defined in the Agreement or Statute.

14.

Implementation, Monitoring and Evaluation

The Head, Equal Opportunity Unit will report annually to the Committee on Equal Opportunity on the incidence of complaints and will make appropriate recommendations for changes to the Policy.

Glossary of Terms

Agreement: The Flinders University Enterprise Certified Agreement 1997-1999 which subsumes the Universities and Post Compulsory Academic Conditions Award 1995.

Complainant: a person who, individually or in conjunction with others, make(s) a complaint of sexual harassment under the Flinders University Sexual Harassment Policy.

Respondent: a person or organisation against whom a complaint has been made under the Flinders University Sexual Harassment Policy and Procedures.

Conciliation: a process where an impartial third party (Conciliator) assists two parties to settle a complaint by mutual agreement.

Discrimination: there are two forms of discrimination:

Direct discrimination occurs when people are treated less favourably because they belong to a particular group or category of people, for example, women or men. It also includes treating someone unfairly because of a stereotype about the particular group or category of people.

Indirect discrimination exists when there is a requirement (a rule, policy, practice or procedure) that is the same for everyone, but which has an unequal or disproportionate effect or result on particular groups. Unless this type of requirement is reasonable in all the circumstances it is likely to be indirect discrimination.

Disciplinary Action: action by the institution to discipline a member of staff for unsatisfactory performance, misconduct or serious misconduct and is set out in the Enterprise Certified Agreement 2004-2006.

Misconduct shall mean :

for students : As set out in Statute 6.4.

for staff: As set out in the Enterprise Certified Agreement 2004-2006.

Natural justice: the minimum standard of fairness to be applied in the investigation and adjudication of a dispute. This is also referred to as procedural fairness. The substantive requirements of natural justice involve:

  • fully informing the respondent/s of any allegation/s made against them;
  • giving them the opportunity to state their case, provide an explanation or put forward a defence;
  • ensuring that proper investigation of the allegations occurs, that all parties are heard and relevant submissions considered;
  • not taking into account irrelevant matters ;
  • not involving the person who makes the allegation in determining it;
  • ensuring that the decision-maker acts fairly and without bias.

Termination of Employment: termination of employment at the initiative of the employer institution.

Appendix 1 - Legislation

Under the S.A.Equal Opportunity Act, 1984:

87(1)

It is unlawful for an employer (being a natural person) to subject an employee, or a person seeking employment, to sexual harassment.

87(2)

It is unlawful for an employee to subject a fellow employee, or a person seeking employment with the same employer, to sexual harassment.

87(3)

It is unlawful for an employee of an educational authority to subject a student, or a person applying to become a student, to sexual harassment.

87(7)

It is unlawful for an employer to fail to take such steps as may be reasonably practicable to prevent an employee from subjecting a fellow employee, or a person seeking employment, to sexual harassment.

87(8)

It is unlawful for an educational authority to fail to take such steps as may be reasonably necessary to ensure as far as practicable that none of its employees subjects a student to sexual harassment.

Definition of sexual harassment:

87(11)

A person subjects another person to sexual harassment if he or she does any of the following acts in such a manner or in such circumstances that the other person feels offended, humiliated or intimidated:

(a) he or she subjects the other to an unsolicited and intentional act of physical intimacy;

(b) he or she demands or requests (directly or by implication) sexual favours from the other;

(c) he or she makes, on more than one occasion, a remark with sexual connotations relating to the other,

and it is reasonable in the circumstances that the other person should feel offended, humiliated and intimidated by that conduct.

Under the Federal Sex Discrimination Act, 1984:

28B(1)

It is unlawful for a person to sexually harass

(a) an employee of the person; or

(b) a person who is seeking to become an employee of the person.

28B(2)

It is unlawful for a person to sexually harass a fellow employee or a person seeking employment with the same employer.

28B(6)

It is unlawful for a workplace participant to sexually harass another workplace participant at a place that is a workplace to both those persons.

28F(1)

It is unlawful for a member of the staff of an educational institution to sexually harass:

(a) a person who is a student at the institution; or

(b) a person who is seeking to become a student at the institution.

28F(2)

It is unlawful for a person who is an adult student of an educational institution to sexually harass:

(a) a person who is an adult student at the institution; or

(b) a member of staff of the institution.

28F(3)

In this section "adult student" means a student who has attained the age of 16 years.

Definition of sexual harassment:

28A(1)

A person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or

(b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed;

in circumstances which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated.

28A(2)

In this section, "conduct of a sexual nature" includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.