(1) This Procedure was approved by the Vice-Chancellor on 1 November 2012 and includes all amendments to 14 May, 2015. (2) This Procedure is pursuant to the Equity and Diversity Policy. (3) To provide a framework for staff members and associates to deal with behaviour which may constitute unlawful discrimination, sexual harassment or victimisation under Commonwealth, Victorian Anti-Discrimination, Equal Opportunity legislation or the Equity and Diversity Policy. (4) This Procedure applies to staff members and associates of the University. Other procedures apply to complaints made by or against students. (5) Refer to the Equity and Diversity Policy. (6) A staff member or associate who believes they may have experienced discrimination, sexual harassment or victimisation related to their employment at the workplace or while engaged in lawful activity at the University should in the first instance contact their manager, senior manager or the Equity and Diversity to discuss their complaint. (7) At any time a staff member or associate may seek assistance from a Harassment and Discrimination Contact Officer or the National Tertiary Education Union. (8) At any time a staff member or associate has the right to a support person other than an Australian legal practitioner or a person who is undergoing practical training for the purposes of being admitted to the legal profession. (9) Information should only be disclosed to those legitimately involved in resolving the complaint. (10) At any time the manager or senior manager may consult the Equity and Diversity for information on discrimination, sexual harassment or victimisation. (11) If after initial consultation, the Director, Equity and Diversity or nominee considers the alleged behaviour poses a serious risk to a member of the University, they may: (12) If in the opinion of the Director, Equity and Diversity or nominee, or the staff member's manager, a workplace issue has been identified, the Director, Equity and Diversity or nominee may consult with the University Solicitor and/or the Director, Human Resources Division. The Director, Equity and Diversity may then, in conjunction with the staff member's relevant manager(s), initiate preventative measures as appropriate, taking reasonable steps to protect the confidentiality of the original information and the identity of the complainant. (13) At any time, a staff member or associate may take their complaint to an external agency. Should that occur, any internal process may be deferred or suspended until a determination or outcome is reached in the external forum. The Director, Equity and Diversity or nominee will confirm in writing to the complainant and respondent(s) if any internal process is to be deferred or suspended and the reasons why. (14) At any time, if a staff member or associate does not wish to pursue their complaint further under this Procedure, they are requested to notify the Director, Equity and Diversity or nominee, in writing who will take any appropriate steps necessary. (15) A staff member or associate is encouraged to resolve concerns locally and informally within a reasonable time period and may discuss alleged instances of discrimination, sexual harassment or victimisation with a Harassment and Discrimination Contact Officer, their manager or senior manager, who will: (16) After discussing the matter with a Harassment and Discrimination Contact Officer, their manager or senior manager, the staff member or associate may choose to resolve the issue directly with the other person, with the assistance of the Harassment Discrimination Contact Officer, their manager or senior manager, if required. Resolution may include but is not limited to: (17) If no resolution occurs at Stage 1, the staff member or associate may choose to either: (18) To pursue either 17b or 17c above, the staff member or associate must: (19) All complaints should be lodged as soon as possible, but generally not later than 12 months after the date on which the alleged discrimination, sexual harassment or victimisation took place. (20) On receipt of a complaint form, the Director, Equity and Diversity or nominee will consider whether any allegations fall outside the jurisdiction of the Equity and Diversity Policy and procedures. If so, the Director, Equity and Diversity or nominee will liaise with the appropriate organisational area and agree on a process to be followed to ensure that all allegations are investigated simultaneously. (21) The Director, Equity and Diversity or nominee will formally acknowledge the complaint as soon as practicable and will proceed to either: (22) If the complainant is satisfied that the respondent's written statement resolves the issue, the complainant and respondent may agree in writing to discontinue the conciliation process and consider the matter resolved. (23) If the respondent(s) does not wish to engage in the conciliation process the Director, Equity and Diversity will advise the complainant, who may choose to: (24) Any process of conciliation should be completed within a reasonable time period having regard to all the circumstances of the complaint, but usually within 20 working days of the respondent(s) being advised of the allegations against them. (25) For the purpose of this Procedure: (26) If the respondent(s) does not provide a written statement or if no resolution occurs the complainant may choose to: (27) If the complainant or respondent(s) alleges that either party has not complied with any written agreement they should contact the Equity and Diversity who will advise the parties of further options for resolution. (28) If allegations of victimisation are received from either the complainant, respondent(s) or any other party, the Director, Equity and Diversity or nominee may after consultation with the University Solicitor: (29) If the staff member or associate requests a formal investigation of the allegations, the Director, Equity and Diversity or nominee will consult with the University Solicitor. (30) If, after consultation with the University Solicitor, the Director, Equity and Diversity or nominee believes that the complaint, even if proved, would not breach anti-discrimination legislation or relevant policy to which this Procedure relates, the Director, Equity and Diversity or nominee will inform the complainant in writing of this decision and reasons why no formal investigation will be undertaken. (31) If after consultation with the University Solicitor, the Director, Equity and Diversity or nominee believes the complaint may, if proved, breach anti-discrimination legislation or any relevant policies, the Director, Equity and Diversity or nominee will immediately refer the complaint to the Vice-Chancellor with a recommendation on whether a formal investigation should take place. (32) If the Vice-Chancellor or nominee determines that a formal investigation should be conducted the Vice-Chancellor or nominee will write to the complainant confirming that the University is to carry out a formal investigation in accordance with Stage 3 of this Procedure and that the investigation will normally be completed within 30 working days of the respondent(s) being advised of the allegations against them. (33) The Director, Equity and Diversity or nominee will inform the Director, Corporate Governance, Risk and Compliance Services that a complaint has been received. (34) If the Vice-Chancellor or nominee determines that a formal investigation shall not take place they will confirm in writing to the complainant that the University will not carry out a formal investigation in accordance with Stage 3 of this Procedure and the reasons why, within 5 days of the making the decision. (35) If the complainant is subjected to any further unlawful behaviour by the respondent(s) they must advise the Director, Equity and Diversity or nominee as soon as possible. (36) Where a formal investigation is to be conducted and having regard to the circumstances of the case, the Vice-Chancellor or nominee will appoint a suitably qualified member of the University to act as Executive Officer who will assist with the administrative functions and organisation of the investigation. (37) The Vice-Chancellor or nominee will as soon as practicable in writing, inform the respondent(s) of the allegations against them and any other action to be taken and will provide the respondent(s) with a copy of the complaint form and any witness evidence upon which the complainant seeks to rely (insofar as it is relevant to each respondent). (38) The respondent(s) will have a reasonable time period to provide a written statement in response to the complaint and any witness evidence upon which it seeks to rely, usually 5 working days of receiving the complaint. The respondent(s) will also provide a list of any witnesses they wish to call and the reasons why. (39) Upon receipt of the respondent's written statement and witness evidence the Executive Officer will provide a copy to the complainant. (40) If the allegations are admitted in full the Vice-Chancellor or nominee will proceed to make a determination as if a finding had been made by the Enquiry Panel (clause 57). (41) If the allegations are not admitted in full or the respondent(s) does not provide any written statement the Vice-Chancellor or nominee will constitute an Enquiry Panel whose terms of reference will be to investigate, on the balance of probabilities, the allegations raised in the complaint and to make a factual finding in respect to each allegation. (42) The Enquiry Panel will comprise three members nominated by the Vice-Chancellor or nominee; the members will normally be members of the University, but having regard to the relevant circumstances, including the nature and seriousness of the allegations, one of the members may be external to the University. One of the members of the Enquiry Panel will be appointed to act as Chair. (43) The following persons are not to be members of the Enquiry Panel: (44) In addition to the Enquiry Panel members, the following will be observers at any hearings: (45) In performing any function under this Procedure, the Enquiry Panel members must: (46) The nature and scope of the investigation conducted by the Enquiry Panel will be determined by the Enquiry Panel with reference to all relevant circumstances, including the nature and seriousness of the allegations. The Enquiry Panel is not bound by the rules of evidence and may make any and all enquiries that it considers appropriate, and may inform itself in any manner that it sees fit, using any technologies or modes of communication. (47) If appropriate, and having regard to all circumstances of the investigation, the Enquiry Panel may convene for a prehearing to: (48) If it believes their evidence may prove or disprove any allegations or assist the investigation in any other way, the Enquiry Panel may at its discretion request the Executive Officer to invite any of the following to appear before it or provide input in a relevant manner: (49) Having regard to all the circumstances of the investigation the Enquiry Panel will advise the Executive Officer of the information it wishes to be disclosed to any witness or member of the University who is invited to participate in the hearing. (50) The complainant, respondent(s) and any witness will have the right to be accompanied by one other person or staff member of the University, other than an Australian legal practitioner or a person who is undergoing practical training for the purposes of being admitted to the legal profession, and that person will have the right to be heard in support of the person they accompany. (51) The Enquiry Panel is not bound by the rules of evidence but will afford the parties natural justice in the process. It can inform itself in any manner it considers appropriate. In particular, it will ensure that: (52) The Enquiry Panel should seek to agree unanimously on their findings; however, the Chair will have a casting vote. (53) The hearing may be adjourned at any time, but the same Enquiry Panel Members must be reconvened to continue the hearing as soon as reasonably practicable. (54) Upon completion of its formal investigations the Enquiry Panel will prepare a written report for the consideration of the Vice-Chancellor or nominee, which will include: (55) The Chair of the Enquiry Panel will provide the Enquiry Panel's report to the Executive Officer, usually within 5 working days of the hearing. (56) The Executive Officer will immediately provide a copy of the Enquiry Panel's report to the Vice-Chancellor. (57) When making a determination the Vice-Chancellor or nominee will consider the following: (58) The Vice-Chancellor or nominee will advise the complainant, respondent(s) and the Director, Equity and Diversity or nominee, in writing of the determination, the reasons for the decision and any further action to be taken, within 5 working days of receipt of the Enquiry Panel's report. (59) If the complaint is not substantiated and is found to have been made in circumstances that indicate bad faith on the part of the complainant, the Vice-Chancellor or nominee may reprimand the complainant or take other action as they see fit. (60) The Director, Equity and Diversity or nominee will ensure, so far as is practicable, that the complainant and respondent(s) or any other party involved in the formal investigation are not subjected to victimisation of any kind by any person as a result of the complaint having been made. If, in the opinion of the Director, Equity and Diversity or nominee in consultation with the University Solicitor, victimisation is alleged to have occurred the following action may be taken by the Vice-Chancellor or nominee: (61) The Director, Equity and Diversity or nominee will monitor the outcomes of actions relating to the Determination and will report on progress to the Vice-Chancellor or nominee within 2 months of the decision being made. (62) No appeal can be made against the determination. If either party is dissatisfied with the outcome of the investigation, they may choose to refer the matter to an external authority. (63) The Equity and Diversity will maintain all documentation and records relating to any formal investigation. (64) Where the University is required to give notice to a person of a matter arising out of Equity and Diversity Policy or this Procedure, unless otherwise specified, that notice will be deemed to have been given if it is in writing and: (65) The Equity and Diversity will, on an annual basis, report to the Vice-Chancellor and the Director, Corporate Governance, Risk and Compliance Services on all complaints lodged by staff or associates to which this Procedure relates that reach Stage 2 or Stage 3 and provide any information on trends, systemic issues, improvements identified and any remedial or preventative actions as appropriate. (66) The Equity and Diversity will review this Procedure in accordance with University policy to ensure it is consistent with current Commonwealth and State legislation and University policies and procedures. (67) For the purpose of this Procedure:Discrimination or Sexual Harassment Complaints by Staff Members and Associates Procedure
Section 1 - Preamble
Section 2 - Purpose
Section 3 - Scope
Section 4 - Policy
Section 5 - Procedure
Stage 1 - Informal resolution
Lodging a complaint
Stage 2 - Conciliation
The resolution process
Stage 3 - Formal investigation
Preparing for the investigation
The Enquiry Panel
The formal investigation
Determination
Formal notification
Monitoring of complaints
Review of procedure
Section 6 - Definitions
in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.
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