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.
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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
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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.
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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.
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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
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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.
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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. |
