Grievance Procedures for Complaints of Unlawful Discrimination and Harassment

Establishment:Council, 29 October 1998
Last Amended: EDA, October 2010
Nature of Amendment: Consequential amendments arising from a restructure of Central Administrations / VCs office and the creation of new senior executive positions replacing the EDA and Registrar
Date Last Reviewed:  
Responsible Officer:Director, Human Resources

  
These procedures are for the internal handling of grievances. As provided for in Options 6 & 7, the University recognises the complainant's right to refer a grievance to a relevant external agency at any time. External agencies may include the Australian Industrial Relations Commission, Equal Opportunity Commission, Human Rights and Equal Opportunity Commission, Ombudsman or Police. Assistance may be sought from the Manager, Human Resources Division or the Head, Equal Opportunity Unit, as appropriate. (Statement Approved by EDA: 09/05)

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

 

Acknowledgement


Flinders University acknowledges drawing upon material from the procedures of other Australian universities in the development of these Procedures.


Table of Contents

Policy Statement

Part A  Scope and Definitions

Part B  Implementation

Part C  Complaint Procedures

Part D  Other Issues

Glossary of Terms
 

Policy Statement

The University is committed to the principle of equal opportunity in education and employment and affirms the value of social and cultural diversity which is reflected in its community. It is committed to providing an environment where staff and students are able to work and study effectively, without fear of unlawful discrimination or harassment.

 

Part A  - Scope and Definitions

1.  Scope

Flinders University has established these Grievance Procedures to comply with the requirements of state and federal legislation and University policies and regulations.

The Procedures outlined in this document apply to 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.

These Grievance Procedures provide several options for dealing with complaints of sexual harassment, discrimination or harassment. One or more options may be required at particular instances. These Grievance Procedures do not need to follow the options sequentially, and the procedure may commence at any stage.

Option 1:  Take no action: information and support is provided by a contact officer to assist a complainant to decide how best to deal with the situation, and to explain all options for resolution. The decision may be to take no action.

Option 2:  Deal with matter individually: information and support is provided by a contact officer to assist a complainant deal with the situation by themselves and to explain other options for resolution.

Option 3:  Informal conciliation (Third Party Assistance): a representative of the Equal Opportunity Unit (conciliator) approaches the person complained against with details of the complaint, obtains the respondent's version of the situation and seeks to resolve the issue. Depending on the circumstances the identity of the complainant(s) need not necessarily be disclosed to the respondent.

Option 4:  Formal conciliation: a formal process of conciliation is set up with a trained conciliator (normally the Head, Equal Opportunity Unit) and a trained co-conciliator. Both parties will be identified and be given the opportunity to state their case and how they would see the situation being resolved. The conciliator(s) will seek to reach an agreed resolution.

Complaints which cannot be resolved through informal means are normally dealt with by conciliation at the informal or formal level. In exceptional situations when incidents cannot be resolved by conciliation it will be necessary to resort to the more formal complaints procedure.

Option 5:  Formal complaint: in the event that conciliation is not possible the complainant may take the complaint to the Vice-Chancellor.

Options 6 & 7:  The University recognises the complainant's right to refer the matter to a relevant external agency at any time. External agencies may include the Police, Equal Opportunity Commission, Human Rights and Equal Opportunity Commission, or relevant staff and student unions or associations. These options are outside the scope of the University Grievance Procedures.

Complaints against the Institution

The University is aware that issues may arise which involve a complaint of discrimination, either direct or indirect, against the University, a cost centre or a work area, (eg on the basis of physical access, cultural racism).

In these instances the complaint must be made in writing to the Vice-Chancellor and the matter dealt with according to more formal procedures, as set out in Part C, Clause 17 of these Procedures.

Legislation and Policies

The following legislation and University policies provide the basis for the development of these Grievance Procedures:

  • Federal Racial Discrimination Act, 1975
  • SA Equal Opportunity Act, 1984
  • Federal Sex Discrimination Act, 1984
  • Disability Discrimination Act 1992
  • Racial Vilification Act (SA) 1996
  • Age Discrimination Act 2004
  • The Flinders University Enterprise Certified Agreement 2004-2006
  • Statute 6.4 Student Conduct
  • Equal Opportunity Policy
  • Disability Action Plan
  • Sexual Harassment Policy
  • Policy Against Racism
  • Policy on Gender Representation on Committees
  • Policy on Language Use in the University

Separate procedures exist to assist students to deal with student complaints and appeals relating to academic matters.


2.  Definitions

Definitions used in these Grievance Procedures are taken from the documents listed above.

Discrimination

Unlawful discrimination is any practice which is designated as unlawful by state or federal legislation or University policy, and which has the purpose or effect of disadvantaging individuals on the basis of their status or beliefs or on the basis of characteristics generally attributed to that status or belief.

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, people with a disability or people of a particular ethnicity. It also includes treating someone unfairly because of a stereotype about a particular group or category of people to which they belong.

Indirect (or systemic) 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 a particular group or groups. Unless this type of requirement is reasonable in all the circumstances it is likely to be indirect discrimination.

The previously mentioned state and federal Acts and University policies include defined circumstances of discrimination which are unlawful. These include:

  • sex, or gender
  • sexuality
  • pregnancy
  • marital status, or status as a parent or carer
  • physical or intellectual disability
  • race, colour, descent, national or ethnic origin
  • cultural differences
  • age
  • political beliefs
  • religious conviction
  • personal association with a person who is identified by any of the listed attributes
  • on any other ground which the Council on the advice of the Committee of Equal Opportunity shall after due consideration determine to be a basis of discriminatory practice
  • any combination of the above

Harassment

Harassment means any form of behaviour which takes place in circumstances in which a reasonable person, having regard to all circumstances, should have anticipated that the person, or group of people, who is(are) subject to the harassment would be offended, humiliated or intimidated. The behaviour in question must be perceived to relate to one or more of the grounds of discrimination as listed above.

Examples of such behaviour include derogatory comments, intrusive and inappropriate questions or comments about a person's race, ethnicity, appearance, political or religious beliefs, unwanted written, telephone, or electronic messages, nuisance calls, threats to or attacks on property, and attacks (physical, verbal or emotional) on a student or staff member of the University.

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.

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.

Grievance

A grievance is any type of problem, concern or complaint related to work or study, or the work or study environment. A grievance can be about any act, behaviour, omission, situation or decision which someone thinks is unfair or unjustified. The act, behaviour, omission, situation or decision in question must be perceived to relate to one or more of the grounds of discrimination as listed above.

Grievance procedures give the University the opportunity to address incidents of unlawful discrimination and harassment in the organisation and as such form part of an overall strategy for meeting its obligations to provide a study environment free of unlawful discrimination and harassment. They also provide the University with records and documentation of action that management took to deal with a formal complaint in the event it is raised with an outside agency.

A network of Contact Officers and the staff of the Equal Opportunity Unit are available to assist staff and students with advice about complaints of alleged unlawful discrimination or harassment in both employment and education.


Part B - Implementation

An essential element in preventing unlawful discrimination and harassment involves raising awareness among members of the university community of their rights and obligations under equal opportunity policies and procedures.

To assist in the implementation of these Grievance Procedures various categories of responsibility have been defined and certain procedures established for providing information and training about these Grievance 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.
 

3.  Responsibility of all Staff and Students

3.1  Staff and students are responsible for ensuring that they cooperate in the maintenance of a work and study environment which is free from unlawful discrimination and harassment. This includes using inclusive language, and ensuring that they do not engage in any unlawful behaviour or acts that will result in less favourable treatment of any individual or group;

3.2  any person approached by someone wishing to discuss a specific instance of possible discrimination or harassment on the grounds outlined in the Equal Opportunity Policy and these Grievance Procedures should refer the person to a Contact Officer or the Equal Opportunity Unit. Confidentiality must be maintained at all times;

3.3  staff and students must refrain from victimising any person associated with a complaint.

 

4.  Responsibility of Supervisors

Supervisors of staff and students should seek to provide a work and study environment free from unlawful discrimination or harassment by exercising appropriate leadership practices. Where instances of unlawful discrimination or harassment are brought to their attention, supervisors have a responsibility to take appropriate action to remedy the problem.

In order to fulfil this responsibility supervisors of staff and students who are accountable for the effective functioning of their workplace, area or unit will:

4.1  take all reasonable steps to ensure that unlawful discrimination and harassment do not occur;

4.2  ensure that their own behaviour is above reproach and that they are aware of the behaviour of others for whom they have supervisory responsibilities;

4.3  ensure that information on unlawful discrimination or harassment, on the University's equal opportunity policies and on these Grievance Procedures is freely available throughout the work and study area and is issued to all new staff;

4.4  actively encourage all members of the study or work area to develop an awareness of equal opportunity issues and to support and abide by the policies;

4.5  attend and encourage staff attendance at relevant training courses and other activities such as special seminars or workshops;

4.6  assist staff to establish a work and study environment which is free from unlawful discrimination and harassment;

4.7  ensure that staff and students do not behave in a manner which:

  • creates an intimidating or offensive work or study environment;
  • adversely affects a person's work or study;

4.8  ensure that complaints of alleged unlawful discrimination and harassment which come to their attention are treated confidentially and sensitively and, where appropriate, are referred to a Contact Officer or the Equal Opportunity Unit;

4.9  take appropriate action in response to any complaints of victimisation which may follow the making of a complaint of unlawful discrimination or harassment;

4.10  if they observe any behaviour that could constitute unlawful discrimination or harassment occurring in their area of responsibility, advise the person involved that their behaviour could give offence and that the behaviour should cease immediately. Subsequent behaviour should be monitored and advice sought from the Head, Equal Opportunity Unit and/or Human Resources Division if such behaviour persists, if appropriate;

4.11  if they are made aware by a third party that unlawful discriminatory behaviour may be occurring in their area of responsibility, take steps to determine whether this is the case and then take appropriate action, as outlined in this document;

4.12  ensure that they are fully aware of the roles and responsibilities of the Head, Equal Opportunity Unit and contact officers, know who the designated contact officers are and seek advice or refer complaints as appropriate.
 

5.  Responsibility of Contact Officers  

The University will maintain a network of Contact Officers to ensure that there is a group of trained and experienced persons to provide information and support to people who seek information and help in dealing with instances of alleged unlawful discrimination or harassment.

Contact Officers are appointed by the Vice-Chancellor on the advice of the Head, Equal Opportunity Unit. It is the responsibility of the Head to ensure that Contact Officers are drawn from a broad range of occupational and study areas in the University and that they receive appropriate training for their role. Special training will be given to Contact Officers on the relevant policies relating to these areas.

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

Any person may seek information and support from a Contact Officer on alleged unlawful discrimination or harassment without necessarily making a complaint.

Contact Officers have responsibility to:

5.1  act fairly and impartially to provide information to staff and students on alleged unlawful discrimination and harassment and clarify any questions or concerns;

5.2  maintain complete confidentiality in dealing with enquiries (see Part D , Other Issues, Clause 18 - Confidentiality).

5.3  provide a first point of contact for complainants and respondents;

5.4  provide information on options for resolution of the complaint and on the importance of maintaining confidentiality;

5.5  respect the wishes of the complainant or respondent with regard to options to be taken;

5.6  provide the complainant or respondent with support throughout the informal and formal grievance procedures, if requested;

5.7  discuss strategies to deal with real or perceived threats of victimisation (see Part D, Other Issues, Clause 20 - Victimisation);

5.8  seek advice where necessary from the Equal Opportunity Unit without revealing the names of the complainant or respondent;

5.9  advise people of the provisions of these Grievance Procedures;

5.10  provide information about alternative complaint procedures within the University should the problem fall outside these Grievance Procedures;

5.11  attend regular Contact Officer meetings and training.

Contact officers do not conciliate complaints of alleged unlawful discrimination and harassment.
 

6.  Responsibility of the Equal Opportunity Unit

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

6.1  perform an educative role in the elimination of unlawful discrimination and harassment and to take action to implement these Grievance Procedures;

6.2  investigate complaints of unlawful discrimination and harassment;

6.3  take all reasonable steps to facilitate the conciliation and resolution of unlawful discrimination and harassment complaints;

6.4  select and arrange training for contact officers;

6.5  develop and distribute publicity material to the University community;

6.6  assist in arranging awareness raising programs and in the provision of training for staff and students on what constitutes unlawful discrimination and harassment;

6.7  maintain confidential records on unlawful discrimination and harassment complaints;

6.8  monitor and evaluate the implementation of these Grievance Procedures.


7.  Responsibility of Conciliators

Conciliators are appointed by the Vice-Chancellor on the advice of the Head, Equal Opportunity Unit. It is the responsibility of the Head to ensure that Conciliators receive appropriate training for their role.

Conciliators are trained to resolve complaints by conciliation. Normally complaints requiring conciliation will be dealt with by the Equal Opportunity Unit staff. In some circumstances it may be necessary to call upon an external person to conciliate a complaint. In these instances the Head, Equal Opportunity Unit may consult with the Vice-Chancellor or the Director, Human Resources Division about a suitable person to invite to conduct the conciliation who has experience in conciliation and in the specific area of discrimination or harassment complained of.

Conciliators have responsibility to:

7.1  advise people who approach her/him of these Grievance Procedures and of the conciliation procedure and, where relevant, of the provisions of the state and federal legislation.

7.2  treat all requests for conciliation in a non-judgemental and independent manner.

7.3  provide, with the complainant's permission, information and assistance to Supervisors who have been approached to resolve a complaint.

7.4  not conciliate a formal conciliation case if they have previously been involved informally in the matter.

7.5  assist a complainant or Contact Officer to find a suitable alternative conciliator in cases where the conciliator approached refuses to conciliate the case.

A Conciliator may be approached by a Contact Officer, supervisor or by a complainant or respondent to undertake the conciliation process in order to assist both parties to reach a resolution to a problem related to alleged unlawful discrimination or harassment.


8.  Provision of Information and Training

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

8.1  educate staff and students about what constitutes unlawful discrimination and harassment and about their responsibility to not unlawfully discriminate or harass other staff and students;

8.2  provide information and training to managers and supervisors on meeting their responsibilities in relation to maintaining a work and study environment that is free from unlawful discrimination and harassment;

8.3  provide information and training to staff who conduct teaching and learning activities or provide student support services, to enable them to meet their responsibilities in maintaining a study environment free from unlawful discrimination and harassment.
 

Part C - Complaint Procedures 

The University is committed to taking effective action to deal with complaints of alleged unlawful discrimination and harassment by:

  • ensuring that complaints are dealt with in a sensitive, timely and confidential manner;
  • resolving complaints of alleged unlawful discrimination and harassment within the University, by means of education, counselling and conciliation, using disciplinary action when required and as provided by these Grievance Procedures;
  • 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 Equal Opportunity Policy and require the use of these Grievance Procedures.

An informal complaint will normally be an oral complaint. Informal complaints are generally considered by Options 1 - 4. After a complainant has received information and support from a Contact Officer they may choose to take no action (Option 1), deal with the matter individually (Option 2), request an informal conciliation (Option 3) or request a formal conciliation (Option 4).

A formal complaint must be in writing and is considered in accordance with Option 5.
 

9.  Principles

The procedures for dealing with informal or formal complaints of alleged unlawful discrimination and harassment are based on the following principles. These principles should be adhered to by all members of the University.

9.1  All students and staff members of the University will be informed of these Grievance Procedures.

9.2  These Procedures do not prevent an individual from acting to resolve a problem of unlawful discrimination or harassment by discussing the situation with the person concerned where they feel confident to undertake such an action and where they believe that is the best course of action in the circumstances.

9.3  Staff members, including supervisors, and elected student office bearers of student organisations have a responsibility to take appropriate action, in accordance with these Procedures, if concerns about unlawful discrimination or harassment are brought to their attention.

9.4  The principles of natural justice and procedural fairness (see Glossary of Terms) apply at all stages of the complaint resolution process.

9.5  Confidentiality must be maintained during these Grievance Procedures in the best interests of the complainant and respondent. (see Part D, Other Issues, Clause 18 - Confidentiality)

9.6  The preferred method of resolving problems will be by discussion, co-operation and a process of conciliation which aims not to make a finding but to assist the parties to reach agreement on a mutually acceptable outcome. Conciliation may not be appropriate however where violence is alleged to have occurred or where a staff member or student holds a reasonable belief that discussion is likely to provoke further incidents of unlawful discrimination, harassment or victimisation or to cause unnecessary distress. A process for investigation of formal complaints is available where conciliation is inappropriate or has proved unsatisfactory.

9.7  Complaints will be acted upon promptly, involving as few people as possible. Complainants and respondents are entitled to receive advice and support as appropriate and to be kept informed of the progress of a complaint.

9.8  Those responsible for investigating formal complaints of alleged unlawful discrimination and harassment (Head, Equal Opportunity Unit or nominee) shall consider all available evidence and make their finding on the balance of probabilities.

9.9  With respect to unlawful discrimination or harassment on the grounds of disability, a third person is permitted to seek advice or make a complaint if they are acting on behalf of a person(s) with a disability.

9.10  The right of individuals to make complaints under relevant state and federal legislation is recognised.

9.11  Staff members and students using these Grievance Procedures must not be victimised on that account and have the right to take action under these Grievance Procedures if they believe victimisation has occurred.

9.12  The University will take action against vexatious or frivolous complaints in accordance with Clause 20 of these Procedures.

9.13  Wherever possible, appropriate steps will be taken to ensure harmonious working relationships during and after investigation and conciliation.

Informal Complaint Procedures

An informal complaint will normally be an oral complaint. Informal complaints are generally considered by providing informal advice and support to enable the complainant to decide whether to take no action, deal with the matter individually, request an informal conciliation or request a formal conciliation. The first point of contact should be a Contact Officer, supervisor or person responsible for the area in which the alleged behaviour occurred.

Any person may seek advice and support from a Contact Officer on alleged unlawful discrimination or harassment without necessarily making a complaint. The Contact Officer is able to provide support and advice throughout the entire procedure.
 

10.  Option 1: Take No Action

10.1  The complainant will provide a Contact Officer with the details of the complaint, but not necessarily in writing.

10.2  The Contact Officer will advise of the provisions of these Grievance Procedures, and of alternative complaint procedures within the University should the problem fall outside these Grievance Procedures.

10.3  The Contact Officer may advise the complainant to inform the supervisor, course coordinator or person responsible for the area in which the alleged act occurred of the incident.

10.4  The Contact Officer will discuss all options available to the complainant.

10.5  The Contact Officer will respect the wishes of the complainant if the chosen option is to take no action.
 

11.  Option 2: Deal with matter individually

11.1  The complainant will provide the Contact Officer with the details of the complaint, but not necessarily in writing.

11.2  The Contact Officer will inform the complainant of the provisions of these Grievance Procedures, and of alternative complaint procedures within the University should the problem fall outside these Grievance Procedures.

11.3  The Contact Officer may advise the complainant to inform the supervisor, course coordinator or person responsible for the area in which the alleged act occurred of the incident.

11.4  The Contact Officer will discuss strategies whereby the complainant may resolve the problem directly with the person concerned, and may provide support and assistance if requested.

11.5  The Contact Officer will provide information on the option of resolution by conciliation, and if requested by the complainant, will arrange referral to the Head, Equal Opportunity Unit.

11.6  The Contact Officer may assist a complainant to make a formal complaint to the Vice-Chancellor, including assisting the complainant prepare the written complaint, if requested.

11.7  The Contact Officer will respect the wishes of the complainant or respondent with regard to options to be taken.
 

12. Record Keeping - Options 1 & 2

12.1  Contact Officers should keep confidential notes on enquiries or complaints only sufficient to act as memory aids. These notes should be kept locked in a secure place and destroyed after the matter is concluded. These notes do not constitute part of official University records.

12.2  Contact Officers will provide the Head, Equal Opportunity Unit with an annual report of the number of enquiries and complaints they have received. Such reports will be on a proforma provided by the Unit and will contain details of the complaint, method of resolution, outcome, gender and status of complainant and respondent. No names or identifying details will be recorded. 

Conciliation

The purpose of conciliation is to resolve a complaint. The procedure aims to deal with complaints quickly, fairly and with care and understanding. Confidentiality is preserved at all times and only those parties with a specific role in these Procedures should be involved at each stage. An important component of this procedure is that it is educative and does not seek retribution against the respondent. Similarly it is important that there are no reprisals against the person making the complaint when it is clear that it has been made sincerely and is not vexatious or malicious.

Conciliators are appointed by the Vice-Chancellor on the advice of the Head, Equal Opportunity Unit. It is the responsibility of the Head to ensure that Conciliators receive appropriate training for their role.

Conciliation may be conducted informally or formally by a trained conciliator(s).
 

13.  Option 3: Informal Conciliation Procedures

In some instances resolution of a complaint can be achieved using an informal approach by the Conciliator and/or the complainant to the person complained against. The aim of the informal approach is to resolve the complaint satisfactorily without recourse to a formal complaint procedure.

13.1  The complainant will provide the Conciliator with the details of the complaint, but not necessarily in writing.

13.2  There may be instances where the complainant does not wish to have their identity known, (eg alleged use of inappropriate language, sexist or racist comments). In this event the complainant may request the Conciliator to approach the person complained against on their behalf. The Conciliator will inform the person complained against of the University's Equal Opportunity Policy and of these Grievance Procedures. The Conciliator will inform that person of the nature of the complaint without disclosing the complainant's identity and explain the effect of this type of behaviour. No further action will be taken but the situation may be monitored.

13.3  Where the complainant agrees to make their identity known to the respondent the complainant may request that the conciliator approach the respondent on their behalf. The Conciliator will inform the person complained against of the University's Equal Opportunity Policy, these Grievance Procedures and the nature of the complaint and will obtain the respondent's version of the event(s). A conciliation may be achieved at this point if the respondent agrees that the behaviour indeed occurred, was inappropriate and gives an undertaking not to repeat the offensive behaviour. An apology to the complainant may be appropriate in some instances.

13.4  In the event that conciliation is achieved no further action will take place but the Conciliator may inform both parties that she/he will monitor the situation for a mutually agreed period of time to ensure the matter has been resolved satisfactorily.

13.5  Alternatively, the complainant or respondent may request the Conciliator to arrange a meeting at which the complainant and the respondent can seek to resolve the complaint. A meeting will be held if both the complainant and the respondent agree. Further meetings may take place by agreement of both parties.

13.6  If a conciliation is achieved the Conciliator may suggest follow-up actions in order to monitor the agreement.

13.7  If a conciliation is not achieved the complainant will be advised of other options to follow. These may include a formal conciliation, or a formal complaint procedure.
 

14. Option 4: Formal Conciliation Procedures

In situations where attempts at informal conciliation have failed or are not appropriate, the following procedures have been developed to achieve a resolution by formal conciliation.

Although it is not essential, co-conciliation is the preferred procedure for conducting a formal conciliation.

14.1  The conciliation process will be conducted in complete confidence.

14.2  The Conciliator(s) will meet with both parties separately to discuss the complaint and to seek agreement to resolve the matter by conciliation or by other means.

14.3  Each party may be accompanied by an appropriate person of their choice who may provide support or information. An 'appropriate person' could include a Contact Officer, friend, colleague, association or union representative, but not if such a person is a currently practising solicitor or barrister.

14.4  With the agreement of both parties the Conciliator(s) will call a conciliation conference.

14.5  A conciliation conference does not presume that there is a case to answer.

14.6  Both parties will be given at least one week's notice of the conference together with an explanation of the conciliation process.

14.7  At the conference each party may be accompanied by an appropriate person of their choice who may provide support or information. An 'appropriate person' could include a Contact Officer, friend, colleague, association or union representative, but not if such a person is a currently practising solicitor or barrister.

14.8  It is not the role of the Conciliator(s) to direct the outcome of the conference or to make a finding. Conciliators will assist each party to put forward and to consider options for a resolution of the matter which will enable them to work or study in an acceptable environment which is free from unlawful discrimination and harassment.

14.9  The Conciliator(s) will act fairly and impartially in assisting each party to reach an agreed resolution and will observe principles of natural justice.

14.10  Throughout the process both parties will be kept informed of the progress of the conciliation.

14.11  The Conciliator(s) will, if requested, assist the parties to put an agreement in writing.

14.12  If an agreement cannot be reached the parties should be informed and the complainant given other options to consider including the option of making a formal complaint to the Vice-Chancellor.

14.13  The Conciliator(s) should try to complete the conciliation process within two weeks of the agreement to hold a conference.

14.14  The Conciliator(s) will check with the parties that the agreement has been kept after two months or other interval as agreed.

14.15  If conciliation has not been achieved the complainant has the option of following the formal complaints procedure, Part C, Clause 16.
 

15.  Record Keeping - Conciliation

15.1  The Conciliator, (Head, Equal Opportunity Unit or nominee) will keep sufficient confidential notes as are necessary to conduct the conciliation process. These should be kept locked in a secure place until such time as the conciliation is settled. Otherwise, these notes do not constitute part of official University records.

15.2  The Head, Equal Opportunity Unit will provide the Committee on Equal Opportunity with an annual report of the number of enquiries and complaints that have been received. Such reports will be on a proforma and will contain details of the complaint, method of resolution, outcome, gender and status of complainant and respondent. No names or identifying details will be reported.

15.3  No other record of the conciliation process will be kept unless it forms part of a written agreement by the parties concerned. 

Formal Complaint Procedures

A request may be made in writing to the Vice-Chancellor for an investigation into a complaint of alleged unlawful discrimination or harassment if:

  • attempts at resolution have failed;
  • the respondent denies the allegations;
  • the person alleging unlawful discrimination or harassment has a concern about victimisation;
  • the complaint involves allegations of serious misconduct and conciliation could compromise the rights of the parties;
  • the person alleging unlawful discrimination or harassment wishes to make a formal complaint from the outset; or
  • the respondent refuses conciliation.

 

16.  Option 5: Formal Complaint Procedure

16.1 - Procedures for Making a Formal Complaint

16.1.1  The letter to the Vice-Chancellor will set out the details of the complaint, the nature of the behaviour, the name of the person(s) complained about, names of witnesses and any other relevant details.

16.1.2  The complainant may seek assistance from a Contact Officer, Conciliator or any other person to write the letter. All parties involved in the complaint at this stage must maintain confidentiality. (see Part D, Other Issues, Clause 18 - Confidentiality)

16.1.3  The Vice-Chancellor will acknowledge receipt of the letter within 5 working days.

16.1.4  A complaint should normally be lodged within 12 months of the last occurrence of the alleged discrimination or harassment. However, in special circumstances a case may be made by a complainant to the Vice-Chancellor to lodge the complaint after the twelve month time limit.

16.1.5  On receipt of the complaint, the Vice-Chancellor will seek advice as to whether the alleged behaviour, if substantiated, would constitute a breach in the University's Equal Opportunity Policy. Such advice shall be sought from the Head, Equal Opportunity Unit (or nominee) and such other people who have expertise in the relevant field of unlawful discrimination or harassment procedures or law as the Vice-Chancellor deems appropriate.

16.1.6  The Vice-Chancellor or his/her delegate (the Head, Equal Opportunity Unit or a person with expertise and skills in handling the relevant form of unlawful discrimination or harassment matters) may interview the complainant to gain further information if necessary.

16.1.7  If the advice received by the Vice-Chancellor is that the alleged behaviour does not breach the Equal Opportunity Policy, the Vice-Chancellor will inform the complainant in writing that no further action will be taken and the reason(s) for that decision.

16.1.8  If the advice received by the Vice-Chancellor is that the alleged behaviour does breach the Equal Opportunity Policy the Vice-Chancellor will proceed with an individual complaint as outlined in Clause 16.2 Procedures for Investigating Formal Complaints.

16.2 - Procedures for Investigating Formal Complaints

16.2.1   Where the Vice-Chancellor proceeds with further investigation of the complaint he/she will inform the respondent in writing of the complainant's name and the allegations, and of their rights according to the principles of natural justice. The Vice-Chancellor will inform the complainant that the investigation is proceeding.

16.2.2 - Student
If the advice received by the Vice-Chancellor is that, prima facie, the alleged conduct of a student appears to breach the University's Equal Opportunity Policy and is conduct which does not accord with the principles of student conduct detailed in Statute 6.4 'Student Conduct', the Vice-Chancellor will follow the policy and procedures pursuant to that Statute.

16.2.3 - Staff Member
If the advice received by the Vice-Chancellor is that, prima facie, the alleged conduct of a staff member appears to be a breach of the University's Equal Opportunity policy and is in accordance with the definitions of misconduct/serious misconduct detailed in the Enterprise Bargaining Agreement, the Vice-Chancellor will invoke or follow the relevant clauses of the Agreement.
  

Complaints Against the Institution


17. Institutional Discrimination

The University is aware that issues may arise which involve a complaint of discrimination, either direct or indirect, against the University, a cost centre or a work area, (eg on the basis of physical access, cultural racism).

17.1 - Procedure For Making A Complaint Against the Institution

17.1.1  The complaint must be made in writing to the Vice-Chancellor, who will acknowledge receipt of the letter within 5 working days.

17.1.2  On receipt of the complaint, the Vice-Chancellor will seek advice as to whether the complaint, if substantiated, would establish that there was a breach in the University's Equal Opportunity Policy. Such advice shall be sought from the Head, Equal Opportunity Unit (or nominee) and such other people who have expertise in the relevant field of unlawful discrimination or harassment procedures or law as the Vice-Chancellor deems appropriate.

17.1.3  The Vice-Chancellor or his/her delegate (the Head, Equal Opportunity Unit or a person with expertise and skills in handling the relevant form of unlawful discrimination or harassment matters) may interview the complainant to gain further information if necessary.

17.2 - Procedure for Investigating Complaints

17.2.1  If the advice received by the Vice-Chancellor is that the complaint is based on grounds which do not breach the Equal Opportunity Policy, the Vice-Chancellor will inform the complainant in writing that no further action will be taken and the reason(s) for that decision.

17.2.2  If the advice received by the Vice-Chancellor is that the complaint is based on grounds which breach the Equal Opportunity Policy but which can be addressed administratively through eg. policy or procedural change(s), the Vice-Chancellor will ensure that the change(s) is made.

The Vice-Chancellor will inform the complainant in writing of the action taken.

17.2.3  If the advice received by the Vice-Chancellor is that the complaint is based on grounds which breach the Equal Opportunity Policy and the matter cannot be resolved administratively as in 17.2.2 above, the Vice-Chancellor will proceed to convene an ad hoc committee to investigate the complaint and make a recommendation on its resolution.

17.2.4  The ad hoc committee to comprise:

  • Vice-Chancellor (or nominee), Chair
  • head of cost centre or person of sufficient managerial level
  • staff person specialising in the area of complaint (eg Disability Liaison Officer, Equal Opportunity Officer, person from Yunggorendi)
  • a representative of the organisation which most appropriately represents the complainant, in consultation with the complainant
  • secretarial support provided by the Vice-President (Strategy and Community Engagement)

Note: If the complaint is against a Head of Faculty or School, the ad hoc committee is to include a Head of a related Faculty or School.

17.2.5  If the complainant is invited to attend the ad hoc committee at any stage, they may be accompanied by an appropriate person of their choice who may provide support or advice. An 'appropriate person' could include a Contact Officer, friend, colleague or union representative, but not if such a person is a currently practising solicitor or barrister.

17.2.6  The ad hoc committee will make a report to the Vice-Chancellor who will:

  • ensure that the complainant is informed of the outcome of the investigation in writing;
  • take any follow up action that he/she determines is appropriate.

17.3 - Record Keeping (Institutional Complaints)

17.3.1  The ad hoc committee will be responsible for keeping all official records during the course of the investigation.

17.3.2  At the conclusion of an inquiry a summary of the complaint, the finding, the action taken and all other documentation (including any tape recording) relating to the complaint should be kept in a confidential file with access restricted to persons specified by the Vice-President (Strategy and Community Engagement).

17.3.3  If a complaint is subsequently lodged with the Industrial Relations Commission, Human Rights and Equal Opportunity Commission or the SA Equal Opportunity Commission, records may need to be accessed in order to demonstrate that reasonable steps were taken to deal with the matter.

17.3.4  All documents will be held in accordance with the University's records policy as established from time to time.
 

Part D - Other Issues

18.  Confidentiality

It is essential to keep confidential all information about alleged unlawful discrimination or 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.

 

19.  Defamation 

A complaint of alleged unlawful discrimination or 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 may amount to libel; if it is not in a permanent form (eg oral statements) the alleged defamation may amount to 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 these Procedures (for example to a supervisor, a contact officer, conciliator or a counsellor).

Protection from a defamation action 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, contact officers, 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 Equal Opportunity Policy and these Grievance Procedures;
  • maintain confidentiality at all times and ensure that information about a complaint is communicated only in accordance with these Grievance Procedures. 

20.  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 complaint under these Grievance 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 Equal Opportunity Policy and Grievance 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.
 

21.  Vexatious Complaints 

These Grievance Procedures do not encourage anyone to make a vexatious or malicious complaint and any person found to have made such a complaint will be subject to the University's disciplinary procedures as defined in the Enterprise Bargaining Agreement or Statute.
 

22.  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 Equal Opportunity policies and Grievance Procedures, as required.
 

Glossary of Terms 

Complainant: a person who, individually or in conjunction with others, make(s) a complaint of alleged unlawful discrimination or harassment under the Flinders University Equal Opportunity policies.

Respondent: a person or organisation against whom a complaint has been made under the Flinders University Equal Opportunity policies and these Grievance Procedures.

Conciliation: a process in which the parties to a dispute, with the assistance of a neutral third party (the Conciliator) identify the disputed issues, develop options, consider alternatives and endeavour to settle a complaint by mutual agreement. The conciliator may have an advisory role on the content of the dispute or the outcome of its resolution, but not a determinative role.

Co-conciliation: a process where more than one conciliator assists two parties to settle a complaint.

Enterprise Bargaining Agreement: The Flinders University Enterprise Certified Agreement 2004-2006.

The Agreement: The Flinders University Enterprise Certified Agreement 2004-2006.

Equal Opportunity policies: the University has a range of policies which deal with acts of alleged unlawful discrimination and harassment. These policies are regularly revised and new ones are added as the need arises. A current list of these policies can be obtained from the Equal Opportunity Unit or from the University Equal Opportunity Unit Website: http://www.flinders.edu.au/equal-opportunity/

Staff: means any person who is an employee or officer of the University at the time of the unlawful discrimination or harassment is alleged to have occurred.

Student: means any person who is enrolled as a student of the University at the time the unlawful discrimination or harassment is alleged to have occurred. Where a person is both a staff member and a student their status as one or the other, or both, in relation to the complaint needs to be clarified by the person handling the complaint. The subsequent process for handling the complaint will relate to this decision.

Misconduct shall mean: 

for students: any conduct which interferes with the rights of others on campus or which is in breach of regulations or policies;

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.

Cost Centre: Faculties, Central Administration or the Library

Work Area: this could be described as a School, Section, Department, Division or Unit.

Supervisor: the person who is responsible for the direct supervision of a staff member. Generally this will be the head of a School, section head or line manager. In the case of academic staff, this is normally the Dean of a School, but could be another academic staff member classified at Level C or above who has been delegated in writing by the Vice-Chancellor to be supervisor of one or more academics or group of academics. The supervisor is always specified in the staff member's contract of employment.