Approved: Council 7 April 1997 (Resolution 97/2/21)
Revised Procedures approved by Council 18 May 2004
Amendments: 3 September 1998 (SMG)
11 October 1999 (Manager: Equity and Diversity)
1 August 2005 (Director: Human Resources)
11 October 2005 (Director: Human Resources)
18 August 2006 (Director: Human Resources)
17 March 2008 (Director: Human Resources)
16 June 2014 (Director: Human Resources)
6 April 2020 (Executive Director: People, Talent and Culture)
Reference Authority: Executive Director: People, Talent and Culture
Contents
These procedures provide a framework to assist the University in resolving the unlawful discrimination and harassment grievances of staff. These procedures, founded on the principles of natural justice and procedural fairness, support the University's commitment to eliminating unlawful discrimination, workplace bullying and victimisation in the University environment.
Consistent with the relevant legislation and good business practice these procedures are based on the philosophy of using education and conciliation as the principal approach to the prevention of unlawful discrimination /workplace bullying and in the resolution of grievances.
The procedures are designed to assist in the resolution of grievances by
Note: These procedures have been developed following review of the University's anti-discrimination policies. The procedures replace the previously documented Equal Opportunity Discrimination and Harassment Complaint Procedures A separate procedure, Student Complaints Resolution has been developed for students.
These procedures apply to grievances from staff of unlawful discrimination /workplace bullying in relation to undertaking work activity for the University. Staff members may seek advice or lodge a grievance under these procedures if they believe they have been:
These procedures do not automatically cover University staff seconded to or undertaking placement in other organisations. In the event that unlawful discrimination/ workplace bullying is experienced in these circumstances the University will act as far as possible to protect the complainant, and will work jointly with the other organisation (and in accord with these procedures, if deemed appropriate) to investigate the grievance and take such precautions as are possible to prevent recurrence.
These procedures do not cover grievances relating to a performance issue, misconduct or fraud related incidents.
The following legislation provides the basis for the development of these procedures
The University will act to ensure that all employees are aware of these procedures for dealing with unlawful discrimination/ workplace bullying grievances and have easy access to them in a format that is appropriate. Accessible versions of these procedures are available for people with disabilities upon request to the People, Talent and Culture Unit.
The University's Discrimination and Harassment Grievance Procedures (Staff) will be monitored, reviewed and revised as necessary. Any review will take place in consultation with relevant University groups, the South Australian Equal Opportunity Commission and the University's legal advisers.
Age discrimination
Age discrimination means unfair treatment of a person on the basis of their age or age group.
Age discrimination often occurs because of incorrect assumptions or stereotypes about people's skills, abilities, personal qualities or needs based on how old or young they are.
Balance of probability
In civil law, the balance of probability is the relevant test to which allegations must be subjected in order to be considered proved. It is a less demanding standard of proof than the criminal law test beyond reasonable doubt. For an allegation to be proved on the balance of probability it must be shown that in the light of available evidence, it is more likely than not that the allegation is true.
Complainant
A person who has lodged a grievance of unlawful discrimination /workplace bullying under the provisions contained within these procedures.
Conciliator
A person trained in University policy and skilled in the facilitation of conflict resolution.
Only conciliators authorised by the Executive Director: People, Talent and Culture are permitted to provide conciliation under these procedures.
Conciliation
Part of the process that enables the complainant and the respondent to discuss fully all issues relating to the grievance and, if possible, reach resolution of the grievance through negotiation.
Conciliation seeks to ensure that there is no recurrence of the behaviour that gave rise to the grievance, and that no victimisation occurs. As most respondents are genuinely unaware that their actions have given offence, conciliation provides the opportunity for them to understand the nature and impact of their behaviour and thereby modify it.
Confidentiality
Confidentiality is defined here to ensure any information provided under these procedures is only disclosed to those legitimately involved in resolving the grievance or as required by law.
Confidentiality must be maintained to
It is a breach of confidentiality to
Disability
Under the Disability Discrimination Act 1992, disability means: the total or partial loss of a person's bodily or mental functions; or total or partial loss of a part of the body; or the presence in the body of organisms causing disease or illness; or the presence in the body of organisms capable of causing disease or illness; or the malfunction, malformation or disfigurement of a part of a person's body; or a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or a disorder, illness, or disease that affects a person's thought processes, perception of reality, emotions or judgement, or that results in disturbed behaviour; and includes a disability that: presently exists; or previously existed but no longer exists; or may exist in the future; or is imputed to a person.
Discrimination
Unlawful discrimination means treating an individual and/or group in employment and education less favourably because of one of the grounds specified in the relevant legislation.
Equity contacts
Trained advisors who are available throughout the University to provide information about options for resolving issues relating to unlawful discrimination/sexual harassment/workplace bullying. They are not responsible for investigating grievances. A list of equity contacts can be found at https://i.unisa.edu.au/ptc-contacts/equity.
Equal opportunity
Equal opportunity means treating people as individuals with different skills and abilities, without making judgements based on stereotypes, or on characteristics as outlined in anti-discrimination legislation. These characteristics include sex, age, race, sexuality, disability, pregnancy, or marital status.
Family responsibilities
Refers to a range of duty to care or support responsibilities an individual may have as a member of a family. For example, to look after a sick child, to attend a child's school for a parent/teacher interview, or to take a partner or elderly parent to the doctor.
Harassment
Unwelcome behaviour or language that has the effect of offending, intimidating or humiliating a person on the basis of their sex, marital status, pregnancy, sexuality, race, disability, age, or political or religious beliefs, 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.
Indemnity
A member of the University or any designated person acting on behalf of the University according to these procedures, either in the normal course of that person's activities or under specific delegation, will be indemnified by the University against any loss or damage arising as a result of any legal action taken against that person.
Marital status
Being single, married, married but living separately and apart from one's spouse, separated, divorced, widowed, or living with another person in a de facto relationship.
Natural justice
Natural justice refers to a due process that displays fairness to all parties. It includes the right to be heard, the right of reply, the right to be treated fairly and the right to be informed of allegation(s) being made.
Pregnancy
Refers to presumed or actual pregnancy, or potential pregnancy.
Race
The term 'race' is understood to be flexible and evolving. It includes a includes colour, nationality, descent, ethnic and/or ethno-religious background.. The word 'race' is used in these procedures to reflect relevant legislation.
Racism
The term 'racism' relates to discriminatory attitudes, beliefs, behaviour, distinctions, exclusions, restrictions or preferences that are based on presumptions about a group or person's race (see definition of 'race' above).
Respondent
The person who is, or each of the persons who are, alleged to have done the act(s) to which the grievance relates.
Sex
For the purpose of this procedure, ‘Sex’ describes a person as male, female or intersex.
Sexual harassment
Unwelcome sexual behaviour or sexual innuendo that has the effect of offending, intimidating or humiliating a person 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.
Sexuality
This means whether a person is heterosexual, homosexual, bisexual or transsexual.
It includes presumed sexuality.
Workplace bullying or harassment
Workplace bullying or harassment involves the repeated unreasonable ill treatment of a person by another or others. It is a form of harassment and discrimination consisting of offensive, abusive, belittling or threatening behaviour directed at an individual or a group in the workplace.
1.1 All staff of the University are responsible for ensuring that they cooperate in the maintenance of a discrimination and harassment-free work environment. 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.
1.2 Any person approached by someone wishing to discuss a specific instance of possible unlawful discrimination/sexual harassment/workplace bullying covered by these procedures should refer that person to these procedures.
1.3 All staff must respect the rights of both complainant and respondent in line with natural justice and procedural fairness.
1.4 Staff who provide or access information relating to any grievance are responsible for ensuring appropriate confidentiality of the information is maintained.
1.5 All staff must refrain from victimisation of any person associated with a grievance.
2.1 Senior managers, for the purpose of this procedure, refers to members of the Enterprise Leadership Team (ELT), Executive Deans, Directors of Research Institutes and of Central Units.
Supervisors are members of the University community who have oversight and/or direction of the work of staff or students.
Senior managers and supervisors are accountable for the effective functioning of their workplace and this includes taking all reasonable steps to ensure that unlawful discrimination/sexual harassment/workplace bullying does not occur.
2.2 Managers and supervisors are expected to familiarise themselves with these procedures and are required to:
2.3 In instances where a manager/supervisor observes behaviour that could constitute unlawful discrimination/sexual harassment/workplace bullying they are required to advise the person(s) involved that the behaviour could give offence and that the behaviour should cease immediately. Subsequently the behaviour will be monitored and further action taken in accordance with this procedure should the behaviour continue.
2.4 In instances where a manager/supervisor is made aware by a third party that unlawful discrimination/sexual harassment/workplace bullying may be occurring in their area of responsibility they should observe and monitor the area and/or seek further advice from the People, Talent and Culture Unit.
It is the responsibility of the Executive Director: People, Talent and Culture to:
4.1 The principal function of the equity contacts is to act as a first point of contact for advice or referral as necessary. It is not their role to investigate or conciliate unlawful discrimination/sexual harassment/workplace bullying grievances.
4.2 Equity contacts must maintain appropriate confidentiality with respect to information disclosed to them regarding allegations of unlawful discrimination/sexual harassment/workplace bullying.
4.3 In the event that an equity contact receives an allegation of unlawful discrimination/sexual harassment/workplace bullying the contact will provide advice on the operation of these procedures and explain options for resolving the grievance.
4.4 The equity contact may act in an ongoing supporting role in the resolution of the grievance if requested to do so by the complainant. Support provided by an equity contact may involve
4.5 The equity contact has the right to withdraw as support person if there is a conflict of interest.
5.1 The purpose of conciliation is to resolve the grievance, not to seek retribution.
5.2 Throughout attempts at conciliation, neutrality and respect for both parties in line with natural justice will be demonstrated.
5.3 The University will maintain a number of specially trained conciliators who will assist in the informal and formal resolutions of unlawful discrimination/sexual harassment/workplace bullying through investigation and conciliation. Conciliators are authorised by the Executive Director: People, Talent and Culture. The principal functions of a conciliator will be to
6.1 It is a condition of use of University computing and telephone facilities (including voicemail) that all users comply with the University's anti-discrimination policies and the Acceptable Use of Information Technology Facilities Policy.
6.2 In the event of there being any conflict between these procedures and the Acceptable Use of Information Technology Facilities Policy, the provisions of these procedures shall take precedence.
7.1 Any investigation will normally be conducted by the conciliator unless deemed otherwise by the Executive Director: People, Talent and Culture. Note: The role of equity contacts is to provide advice on options and the processes involved, not to investigate grievances.
7.2 The purpose of an investigation is to elicit facts, not to disseminate allegations. Any investigation will be based on the principles of natural justice. These principles require that the investigator/conciliator approach the process with neutrality and in recognition of the right of both parties to a fair hearing. It is the responsibility of the investigator/conciliator to withdraw from the process in the event that their neutrality is compromised.
7.3 Written details of a formal grievance provided by the complainant should be specific and it is the right of the respondent to know exactly what the allegation is.
7.4 In the interests of natural justice the respondent should be allowed reasonable time to provide a considered response to the allegation. This written response should normally be provided within 10 working days of the respondent being notified of the allegation.
7.5 The complainant, the respondent and any support people will be informed of the need for confidentiality.
7.6 The complainant's grievance, the respondent's reply and the details of any actions taken by the complainant in attempts to conciliate at an earlier stage will form the basis of an investigation.
7.7 Where there is disagreement of fact, witnesses who have been appropriately cautioned about confidentiality may also be interviewed. Information should not be unnecessarily disclosed to witnesses.
7.8 Information gathered during the investigation, will be documented by the investigator/conciliator and together with the other written statements and reports will be used by the investigator/conciliator to test the substance of the allegation. The evidence may not be conclusive, but it should be able to determine whether the allegation is true on the balance of probability.
8.1 The purpose of conciliation is to resolve the grievance, not seek retribution. Conciliation seeks to ensure there are no reprisals and no victimisation for having made the grievance.
8.2 The principal functions of the conciliator will be to
8.3 In attempting conciliation, the conciliator may act as a go-between or as a neutral intermediary in the presence of both the complainant and the respondent until an agreed resolution is reached.
8.4 Throughout attempts at conciliation, neutrality and respect for both parties in line with natural justice will be demonstrated.
9.1 Grievances made under these procedures should be made as soon as possible but not later than 12 months after the alleged event(s) occurred.
9.2 The complainant will be advised that at any stage of the procedures a grievance may be made to an appropriate external agency. If the respondent has been notified of the grievance, the respondent will be made aware of the complainant's right to proceed in this manner.
9.3 Complainants will be advised that grievances lodged under the relevant state and federal legislation may be subject to varying time restrictions.
9.4 Where the matter is pursued through an external authority, including the Commissioner for Equal Opportunity, Human Rights and Equal Opportunity Commission, or South Australian Ombudsman's Office, internal action will cease.
9.5 Although complainants are strongly encouraged to seek advice in person, others may approach an equity contact for advice on their behalf. However, if a complainant decides to proceed, only grievances received from the person(s) complaining of unlawful discrimination/sexual harassment/workplace bullying (not by others on their behalf) will be investigated and/or conciliated.
9.6 The complainant may decide not to continue with a grievance at any stage of the informal or formal process. In this event, the complainant will be required to detail the intention in writing to the conciliator. If the respondent has been notified of the grievance, the conciliator will notify that person immediately that the grievance has been withdrawn and deal with any unresolved issues.
9.7 Where the grievance may involve criminal proceedings, the complainant will be advised by the conciliator that the matter should be taken up with the police.
9.8 The above are general procedural requirements and the University reserves a discretion to act at variance from these requirements in particular cases.
10.1 Record of conciliation process
A confidential file will be created and maintained by the conciliator to provide a record of the grievance and subsequent action. Once the matter is concluded, the file will be forwarded to the Executive Director: People, Talent and Culture for confidential filing.
10.2 Personnel records
If a grievance results in a formal warning, or disciplinary action, a record of the incident will be placed on the appropriate official personnel file. The staff member will be given the opportunity to add any written response to records that are placed on their personnel file. Details of the grievance will be removed from the official personnel files after the expiration of five (5) years if there has been no repetition of the behaviour.
There are four main stages in these procedures. Generally, these stages will be undertaken in progression unless the nature of the individual grievance or the wishes of the complainant determines otherwise.
Progress to a further stage occurs only if resolution is not achieved and the complainant wishes to proceed with the internal grievance process.
The complainant determines what action will be taken, and may withdraw the grievance or discontinue the process at any time.
11.1 In the first instance, a person seeking information on an issue that may constitute unlawful discrimination/sexual harassment/workplace bullying should obtain advice from an equity contact, their manager, their local People, Talent and Culture Business Partner or a consultant in the People, Talent and Culture Unit.
11.2 The intent of Stage 1 is to provide the complainant with the advice and knowledge necessary to deal with the situation personally. The complainant should be advised that the following actions will only be pursued if it is appropriate in the circumstances and if the person seeking advice agrees and feels confident to undertake such actions. Actions that can be taken by the complainant may include
11.3 If no resolution occurs, the complainant in discussion with the Executive Director: People, Talent and Culture may choose one of the following options:
12.1 The complainant will be advised that the purpose of conciliation is to resolve the grievance, not seek retribution.
12.2 There may be instances where the complainant does not wish to have their identity known. In this event, the complainant may request that the conciliator approach the respondent on their behalf. The conciliator will advise the respondent of the nature of the grievance without disclosing the complainant's identity, explain the effect of the behaviour, remind the respondent of the Equal Opportunity Policy and other relevant policies and codes, and discuss the matter with them. No further action will be taken, but the situation will be monitored.
12.3 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 convey the complainant's concerns and reiterate the University's Equal Opportunity Policy and other relevant policies and codes without assessing the merits of the case. The conciliator will also obtain the respondent's version of the event(s).
12.4 The complainant may request that the conciliator arrange a meeting at which the complainant and the respondent can attempt conciliation in the presence of the conciliator.
12.5 Further conciliation meetings will take place if necessary and by agreement of all parties.
12.6 If conciliation is achieved the conciliator may suggest appropriate follow-up actions in order to monitor the situation.
12.7 If no resolution occurs, the complainant in discussion with the Executive Director: People, Talent and Culture may choose one of the following options:
13.1 At this stage, the complainant is required to detail the nature of the grievance in writing.
13.2 Investigation will not proceed unless the complainant consents to their identity being known to the respondent.
13.3 The conciliator will investigate the grievance, acting at all times to make appropriate allowance for the rights and concerns of both the complainant and the respondent in line with the principles of natural justice.
13.4 The conciliator will inform the respondent of the allegation. The intention and purpose of the conciliation process will be emphasised.
13.5 The respondent will be advised of the:
13.6 The conciliator will consult with the respondent regarding their response to the grievance.
13.7 If after investigation the grievance is not substantiated the complainant and respondent will be advised that the matter cannot proceed.
13.8 If after investigation the grievance is substantiated the complainant and respondent will be advised that the matter will proceed to conciliation.
13.9 During the formal stages of the procedures, the complainant and the respondent may choose to be supported by another person. This person may be a friend, colleague, or equity contact and must maintain strict confidentiality. This person should not be anyone who has a formal conciliation role under these procedures. As these are internal procedures aimed at achieving conciliation, the support person should not be acting in a legal capacity. In the event the support person is acting in a legal capacity the University reserves the right not to proceed further or to exercise a general discretion as to how the matter shall be dealt with, which may involve departing from ordinary procedures.
13.10 In the event that both parties agree to attempt formal conciliation, but believe that conciliation would be further enhanced by the appointment of an alternative conciliator, or in the event that both parties will only agree to attempt formal conciliation in the presence of an alternative conciliator, then a request will be made to and considered by, the Executive Director: People, Talent and Culture. The Executive Director: People, Talent and Culture will inform both parties of the outcome of this request. If the request is granted, the Executive Director: People, Talent and Culture will appoint a conciliator who has expertise in the resolution of grievances. The appointed conciliator will provide a report to the Executive Director: People, Talent and Culture of the outcome.
13.11 If conciliation is achieved, the parties may agree to one or any combination of actions. The University will support these actions as far as is possible and appropriate. The situation will be monitored.
13.12 If conciliation is not achieved, and
13.13 If conciliation is not achieved, and the Executive Director: People, Talent and Culture believes that on the balance of probability the grievance is substantiated and warrants disciplinary action then with the consent of the complainant the matter will be referred to the Vice Chancellor requesting that disciplinary procedures be invoked.
14.1 The Executive Director: People, Talent and Culture in referring the matter to the Vice Chancellor for formal determination will make available all details of the grievance, the respondent's reply, investigation findings and actions undertaken in attempting conciliation.
14.2 In determining the outcome of the grievance the Vice Chancellor may
14.3 If the Vice Chancellor determines the grievance is satisfactorily resolved, subsequent monitoring may be delegated to the Executive Director: People, Talent and Culture.
14.4 If the Vice Chancellor determines the grievance is substantiated then the Vice Chancellor will act in accord with the following
14.5 If after consideration the Vice Chancellor believes the grievance is not substantiated but has been made in good faith then the matter will be closed. In this event, the Vice Chancellor will act to ensure that the complainant and respondent are not subjected to victimisation or any retaliatory action.
14.6 In the event that the grievance is not resolved by the University to the satisfaction of the complainant, the complainant shall be advised that the matter can be taken to appropriate external agency.
15.1 If, at any stage after the grievance has been investigated, the Executive Director: People, Talent and Culture considers that:
then the matter will be referred to the Vice Chancellor for disciplinary action.
15.2 Disciplinary action will be taken in accordance with the following
The University is potentially liable in defamation actions arising out of unlawful discrimination/sexual harassment/workplace bullying grievances. It is important to keep the risk of defamation to a minimum by ensuring that only those who need to be involved in the resolution of the grievance deal with the grievance.
Provided those who are legitimately involved in the grievance act in good faith, retain confidentiality, and limit the advice/investigation/conciliation to specific matters related to the grievance, successful defamation action should not arise.
Those involved in cases of unlawful discrimination/sexual harassment/workplace bullying should take note that
State and federal legislation provide that the University can be found vicariously liable for the unlawful discrimination/sexual harassment/workplace bullying of others by its employees. State and federal legislation also provide that the University may be found vicariously liable for the unlawful discrimination/sexual harassment/workplace bullying of others by its agents. In these procedures, the term 'agent' is deemed to mean
As one 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 unlawful discrimination/sexual harassment/workplace bullying and informing them of their rights and responsibilities with respect to these procedures.
In the event of a formal grievance being lodged under state or federal legislation and the University being required to pay any sum, the sum will be paid initially by the University, to be recovered from the relevant cost centre at the discretion of the Vice Chancellor.
Employees who fail to fulfil the responsibilities required by these procedures may find themselves personally liable for damages.
In order for grievances to be brought forward, complainants must feel secure in the knowledge that the University's procedures will be followed without fear of retribution.
Under state and federal legislation, it is unlawful to subject a person who has lodged a grievance of unlawful discrimination/sexual harassment/workplace bullying to victimisation.
The University offers protection and support for all individuals who either lodge a grievance of unlawful discrimination/sexual harassment/workplace bullying, or have had a grievance lodged against them, or are legitimately involved in the administration of these procedures.
For the purposes of these procedures victimisation, as based on the South Australian Equal Opportunity Act 1984, means that an individual is treated unfavourably or subjected to any other detriment (by any other person or group) because the individual has in good faith:
Individuals who are subject to victimisation because of actions undertaken in accordance with these procedures are encouraged to advise the Executive Director: People, Talent and Culture.
Once notified of an incident of victimisation, the Executive Director: People, Talent and Culture shall investigate the matter. If victimisation is confirmed the matter will be referred to the Vice Chancellor with the recommendation that action is taken in accordance with the relevant University disciplinary procedures or statutes.