1. Purpose & Scope
1.1 Purpose
Swinburne University is committed to promoting a fair and equitable and
study environment which is free from discrimination, harassment and
vilification in line with its obligations under Victorian and
Commonwealth legislation.
1.2 Scope:
Institutional
Swinburne University is a Multi-Campus University offering programs
from TAFE Certificate to Ph.D level. Swinburne University
acknowledges that amongst its students and staff are males and
females of differing ethnic backgrounds, religious and political
beliefs and sexual preferences. Some of these individuals
have a disability and some are parents. The University
undertakes to value these differences and create an environment in
which all can work and study free from discrimination and harassment.
Legislative
Under a number of State and Federal Acts of Parliament, harassment,
discrimination and vilification on a number of specified grounds in
the work and study context are illegal. The University has
obligations under the following Acts:
The Equal Opportunity Act 1995 (Vic)
The Sex Discrimination Act 1984 (Cth)
The Disability Discrimination Act 1992 (Cth)
The Racial Discrimination Act 1975 (Cth)
The University will meet its obligations under these Acts through the
implementation of this policy and associated procedures.
2. Applicable to:
This policy is applicable to all current and prospective University
staff and students.
3. Policy
3.1 Objectives
The University is committed to putting in place:
3.1.1 Procedures to deal with complaints of discrimination and
harassment which are
- accessible to students and staff
- observe the principles of natural justice
- provide clear links to staff and student disciplinary procedures to
deal with identified discriminators,
- harassers and vexatious complainants
- protect aginst victimization of a complainant or a person associated
with a complainant
3.1.2 Strategies to educate its staff and students about what
constitutes harassment and discrimination and the ways in which it
affects the person discriminated against or harassed.
3.1.3 Strategies to educate all managers and supervisors of both staff
and students in ways to prevent discrimination and harassment, and
the principles of resolving conflict through conciliation.
3.1.4 Strategies to ensure that the University’s policies and
procedures are not directly or indirectly discriminatory.
3.2 Prohibition of Discrimination and Harassment on Specified
Grounds
The University will not tolerate discrimination against, or harassment
and vilification of, any individuals or groups on prohibited
grounds. Types of prohibited behaviour and grounds of
prohibited discrimination and harassment are defined below.
Grounds of prohibited discrimination and harassment and types of
prohibited behaviour are:
Age
Sex
Race
Impairment or disability
Industrial activity
Lawful sexual activity/sexual orientation
Marital, parental or carer status
Physical features
Pregnancy
Political belief or activity
Religious Belief or Activity
Direct or indirect discrimination against someone who is associated
with a person with any of the above attributes also will not be
tolerated.
3.3 Types of Prohibited Behaviour
3.3.1 Direct and Indirect Discrimination
Both direct and indirect discrimination is illegal in the area of
education and employment and will not be tolerated by the University.
In both direct and indirect discrimination the discriminator’s motive
is irrelevant, and it is also irrelevant whether the discriminator is
aware or not of the discrimination.
3.3.1 (a) Direct discrimination means treating or proposing to treat
another person less favourably on the basis of an attribute than the
person treats or would treat someone without that attribute in the
same or similar circumstances.
An example of direct discrimination is to deny a female job applicant
the position simply because she is female.
3.3.1 (b) Indirect discrimination means imposing or intending to impose
a requirement condition or practice that:
- a person with the attribute does not or cannot comply with; and
- a higher proportion of people without the attribute or with a
different attribute, do or can comply with; and
- it is not reasonable in the circumstances.
An example of indirect discrimination could be a requirement that all
students must study full-time which indirectly discriminates against
those whose disability or parental status precludes them from doing
so.
3.3.2 Harassment
The University will not tolerate any form of harassment. Sexual
harassment and harassment on the basis of disability are covered by
anti-discrimination legislation.Other forms of harassment which
create a hostile work/study environment can be the subject of common
law actions
3.3.3 Vilification
The University will not tolerate offensive behaviour based on racial
hatred or behaviour likely to humiliate, offend, intimidate or insult
others where the behaviour is caused by the other’s race, colour or
national or ethnic origin.
3.4 Avenues Through Which a Complaint May Be Lodged
Staff members and students who believe that they are being
discriminated against or harassed in contravention of this policy may
take action under the following procedures:
Swinburne University Sexual Harassment Policy and Procedures
For staff:
Swinburne University Procedure for resolving Discrimination Complaints
For students
Student Grievance procedures
3.5 Sources of Advice
Advice may be sought from the University’s Discrimination/Harassment
Advisors, the Equity Office, the Swinburne Student Union, or the
staff member’s industrial association, as appropriate.
Applies to: University-wide
Approved by: Council
Context: Swinburne University of Technology takes
seriously its responsibilities to handle complaints of discrimination
and harassment promptly and impartially. It has delegated
appropriately the handling of these complaints to managers and
supervisors. The University undertakes to train individuals involved
in the resolution of complaints and to have available staff with
relevant expertise to provide advice.
These procedures should be read in conjunction with the relevant
University policies:
Swinburne University of Technology Sexual Harassment Policy
Swinburne University of Technology Anti-Discrimination Policy
Content:
1. Staff Responsible for Handling Discrimination /Harassment
Complaints.
2. Informal Resolution Process
3. Formal Resolution Process
1 Staff Responsible For Handling
Discrimination/ Harassment Complaints
1.1 Responsibilities of Staff with
Supervisory Responsibilities:
All employees who have responsibility for supervising staff and
students are required to maintain a work and study environment free
from discrimination/harassment. They are required to adhere to
University policies and procedures which support this goal. Policies
and procedures will be widely distributed and an ongoing education
campaign conducted for staff and students.
Managers responsible for the employment of contractors should ensure
that all contractors coming on site are familiar with Swinburne's
Policies and Procedures and have in place mechanisms to deal with
employees who contravene these policies.
Managers of organisational units are responsible for handling
complaints they receive which are of an informal nature (refer
Clauses 2.2 & 2.3). Formal complaints are handled by the
relevant officer in accordance with Clause 3.
(Also see Swinburne University Sexual Harassment Policy, Clause 14).
1.2 Discrimination/Harassment Advisors:
Swinburne will appoint and train a group of
Discrimination/Harassment Advisors who shall be existing employees of
the University. These individuals will be trained in
Anti-Discrimination/Harassment Legislation, the identification of
allegations which fit under the legislation and appropriate ways of
dealing with these matters.
Their role is to act as advisors to complainants and to provide them
with support and advice on procedures where necessary. They are not
required to act as advocates and should remain neutral at all times.
Advisors will liaise closely with the Equity Staff to make sure that
problem areas are identified and appropriately dealt with.
1.3 Role of Manager Equity and Director
Human Resources:
The Manager Equity and Director Human Resources are responsible for
initiating these procedures in regard to any formal complaints
lodged. They are responsible for;
- publicising and reviewing this procedure
- ensuring that advisers are appointed
1.4 Confidentiality:
All persons who are party to complaints are required
to maintain confidentiality. This includes managers, advisers,
the person making the complaint (the complainant) and the
person against whom the complaint is made (the respondent). Breaches
of confidentiality may lead to actions for defamation on the part of
those involved.
Witness statements taken as part of an investigation process are to
be clearly marked as confidential documents. The University
will do everything in its power to ensure that they are treated as
such within the requirements of the FOI Act.
2 Informal Resolution Process
The University has established an informal process to enable
complaints to be resolved as close to their source as possible.
Complainants are not compelled to use this process if they feel that
it is not appropriate and have the option of proceeding immediately
to a formal process.
2.1 Principles
Informal resolution measures are the preferred way of resolving
complaints other than those of serious harassment for the following
reasons:
- Ensuring a discrimination/harassment free work and study
environment should be a normal activity.
- Cases can be resolved without a person being labelled as a
discriminator/harasser (this is appropriate where the behaviour is
unintentional).
- Matters can be resolved without involving parties in formal,
complex and time-consuming procedures.
- Management can institute preventative measures throughout a work
or teaching area without attributing blame to one or more
individuals. (This is particularly relevant in areas where the
established culture needs to change).
2.2 Informal Action by the Complainant:
Internal action by the complainant may include:
- Asking or telling a person to stop, accompanied by an advisor or a
union representative if they feel a need for support.
- Writing a personal and confidential letter to the person concerned
asking that the behaviour stop.
- Making an informal complaint to the person's manager or another
senior staff member in the management unit.
2.3 Informal Actions by a Manager
In instances where a
complainant does not wish to proceed with a complaint or where
discriminating/harassing behaviour has been observed by a manager,
he/she may need to take action despite the request of the complainant
or in the absence of a formal complaint. In these circumstances an
individual perpetrator does not need to be identified. A generally
hostile work/study environment, may be sufficient to constitute
unlawful discrimination/harassment. Under these circumstances
managers may take action of a general nature in the organisational
unit. Management action may include educative or preventative
actions, monitoring the workplace or seeking advice from the Manager
Equity. Informal complaints are not normally reported.
In such circumstances it is critical that no details that may
identify a complainant or respondent are disclosed. This would
be a breach of confidentiality which could have serious
implications. Particular care needs to be taken in relatively
small organisational units.
If a manager believes that a staff member or student is displaying
behaviour that could be viewed as discrimination/harassment, or has
received an informal complaint, he/she may informally discuss the
matter with the individual concerned, having regard to the Staff
Disciplinary Procedure where appropriate. If he/she is unsure of how
to do this they should contact the Manager Equity for advice.
2.4 Monitoring Outcomes:
Where the above processes are used the effectiveness of such actions
needs to be monitored. If the identified behaviour continues or the
respondent denies it, the parties should be advised to move to a
formal process.
Note: It is important for all staff to be aware that legal liability
and damages may be awarded not only against Swinburne on the basis of
vicarious liability, but also against an individual manager who has
not acted reasonably to prevent or resolve incidents of
discrimination/ harassment. Liability and damages may also be imposed
on an individual who is found legally culpable for
discrimination/harassment. Receipt of an informal complaint of
discrimination/harassment is not proof of an individual's culpability
and any such assumption should not be made during discussions with
alleged respondents
3 Formal Resolution Process
3.1 Introduction
The process selected to resolve a complaint lies primarily with the
complainant but also depends on the seriousness of the allegations
and the manager's responsibility to the University. Both Conciliation
and Investigation procedures are available for the resolution of
formal complaints.
Complaints of harassment/discrimination can be handled either
through internal procedures or externally through the Equal
Opportunity Commission/Human Rights & Equal Opportunity
Commission. A range of Swinburne employees have responsibility
for the effective handling of complaints including Advisors, Managers
and The Manager Equity.
The University has established a staged approach to handling formal
complaints as follows:
Step 1 - Conciliation (refer Clause 3.3)
Step 2 - Investigation (refer Clause 3.4) which will be used in
cases where formal complaints are lodged and no satisfactory
resolution can be reached through the conciliation processes.
In cases where the complainant or respondent decides against
participation in the conciliation process the matter will proceed
directly to investigation. Where the complaint is of a serious
nature such as rape or sexual assault the University will move
straight to the investigation stage whether the complainant
goes to the police or not. Time frames for the handling of
formal complaints have been put in place to prevent protracted
processes with no satisfactory outcomes for either party. These time
frames apply only to internal processes. Where complaints are
taken to the Equal Opportunity Commission the time lines under the
relevant legislation will apply.
3.2 Options for Complainants:
The complainant can seek resolution of his/her complaint of
discrimination/harassment by taking one or more of the following
actions -
Contact Manager Equity for advice on proceeding with the complaint.
Lodge a written complaint with the Manager Equity/Director Human
Resources.
Contact the Equal Opportunity Commission for information and/or to
lodge a complaint under the, Federal Racial Discrimination Act 1975,
Federal Sex Discrimination Act 1984, Federal Disability
Discrimination Act 1992 or the State EO Act 1995.
3.3 Conciliation:
The purpose of conciliation is to reach a resolution agreement
satisfactory to both parties. The conciliation process is not a
fact-finding exercise and there is no requirement to establish the
accuracy of claims made by either party.
The conciliation process is confidential and without prejudice. No
statements made by the complainant or respondent in the course of
conciliation may be used as evidence in proceedings relating to the
matter of the complaint.
3.3.1 Steps to be taken in the
Conciliation of a Formal Complaint
- The complainant lodges their complaint, in writing, with the
Manager Equity or Director Human Resources.
- The recipient of the complaint will prepare an "Equity
Statement of Complaint" to be forwarded to the respondent. The
respondent will be advised that the statement is confidential and
that they should not contact the complainant directly with regard to
it.
- Within 5 working days of contacting the respondent the recipient
of the complaint consults with the complainant and the respondent to
identify whether they agree to conciliate the complaint. Where
conciliation is agreed the recipient of the complaint will identify a
manager acceptable to both parties as the conciliator.
- The Manager Equity will assist the nominated conciliator to plan
the steps to be taken in attempting to resolve the complaint.
- The complainant and respondent will be required to sign a
"Confidentiality Agreement" agreeing that any statements
made in the course of the conciliation process shall confidential and
without prejudice.
- Within 5 working days the conciliator will discuss possible
resolutions with both the complainant and the respondent and seek to
achieve a resolution satisfactory to both parties.
- Where a resolution is achieved the complainant and respondent will
sign the "Resolution Agreement" as complete and final
settlement of the complaint.
- Resolution agreements may involve:
- a mediation session where a misunderstanding may have occurred;
- a compulsory counselling session to be attended by the respondent; or
- an acknowledgment by the respondent that their behaviour caused
offence even if it was unintentional and an undertaking to modify
their behaviour.
- Records can be destroyed after eighteen months
Note: The respondent should be advised that an inappropriate
response or reprisal by them affecting the complainant is
unacceptable and is a potential cause for a separate disciplinary
action or complaint to the Equal Opportunity Commission. The
respondent should also be informed that statements made as part of a
legitimate investigation of a discrimination/harassment case which
remain confidential to the parties legitimately involved are
'privileged' under law and are therefore not defamatory.
3.3.2 Monitoring Outcomes of the
Resolution Agreement
Where a Resolution Agreement is achieved a monitoring process must
be put in place to ensure compliance with the terms of the agreement.
An appropriate person will be nominated by the Manager Equity to
monitor the Resolution Agreement.
3.3.3 Failure to achieve a Resolution
Agreement
Where the resolution agreement cannot be conciliated between the
complainant and the respondent, the conciliator will sign a statement
declaring an agreement cannot be conciliated between the parties and
the matter will proceed to the investigation stage.
3.4 Investigation:
3.4.1 Purpose of Investigation:
An investigation is conducted to determine findings of fact. These
facts are used to recommend actions to be taken by the University to
resolve the complaint. The legal test for the findings in an
investigation carried out under this policy is "balance of
probability".
3.4.2 Appointment of Investigators
The University will appoint and train a team of investigators who will
be responsible for investigating complaints. Investigators will
be assigned to a particular complaint by the Manager Equity. Investigators
will need to be persons with no prior knowledge of the case and must
be impartial. Every effort will be made to expedite the
process.
3.4.3 Timelines for Formal Complaints
undergoing Investigation:
Investigations will be carried out by two investigators. The following
timetable is indicative only and is subject to the availability of
the parties to the investigation.
- Within 5 working days of notification of the need for a formal
investigation a person/persons will be appointed to carry out the
investigation.
- Within 5 working days of appointment the investigators will
interview the complainant.
- Within 5 working days of the interview the investigators will
prepare a written account of the complaint and present to the
respondent.
- The respondent will be given twenty- four hours to read the
complaint prior to being interviewed by the investigators, in order
to provide a response.
- During the next 15 working days the investigating team will
interview any witnesses and the complainant and respondent as
necessary.
- Following the interviews a report and recommendations to be
produced for Vice Chancellor or his/her delegate within 5 working
days..
- On receipt of the report a decision will be made on action to be
taken and the complainant an respondent will be notified within 5
working days.
3.4.4 Outcomes of Investigation:
A decision will be made on the basis of the report to either dismiss
the complaint if it is found to be vexatious or without substance or
take appropriate disciplinary action against the respondent if the
complaint is upheld.
Where disciplinary action is appropriate the relevant University
discipline procedures for staff will be invoked. Where the
respondent is a student and disciplinary action is appropriate,
Student Discipline Procedures will be invoked. If the
complainant is not satisfied with the outcome they can take their
complaint to the Equal Opportunity Commission.
Respondents who are not satisfied with the outcome should seek
advice from the appropriate union or an independent legal adviser.
In cases where the complaint is not substantiated and is identified
as being vexatious, misconceived or without substance further action
may need to be taken by University management.
