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Discrimination and Harassment Grievance Procedures (Australia Only)

Parent Policy

Equal Opportunity Policy

INDEX

PART A - RIGHTS AND OBLIGATIONS UNDER THESE PROCEDURES           

1              Monash University's commitment to Equal Opportunity               
2              Application of these Procedures                
3              Coverage of these Procedures     
4              What is Discrimination?
5              What is Harassment?    
6              What is Vilification?        
7              What is Victimisation?   
8              Privacy   
9              Defamation       
10           Criminal behaviour         

PART B - MAKING OR RESPONDING TO A COMPLAINT UNDER THESE PROCEDURES 

11           Guiding Principles           
12           Process in Summary      
13           Stage 1: Advice and Assessment              
14           Stage 2: Conciliation       
15           Stage 3: Investigation and Determination            

PART C - RESOURCES AND ARRANGEMENTS      

16           Appointment of Advisers            
17           Record Keeping and Reports of Advisers              
18           Appointment and Training of Conciliators            
19           Record Keeping and Reports of Conciliation        

PART D - ROLES AND RESPONSIBILITIES

20           Staff and Students   
21           Managers and Supervisors         
22           Director, Equity and Diversity Centre     

PART  E - RELEVANT LEGISLATION            

PART F - FLOWCHART   

Printable version of Procedure [pdf]

Responsibility

n/a

PART A - RIGHTS AND OBLIGATIONS UNDER THESE PROCEDURES

1          Monash University's commitment to Equal Opportunity

1.1.      The Equal Opportunity Policy of Monash University (the "University") commits the University to providing an environment where students and staff and other members of the University community are able to work effectively, without fear of discrimination, harassment, vilification and victimisation. The University has established the Discrimination and Harassment Grievance Procedures (the "procedures") in recognition of its commitment to equal opportunity in education, employment, the provision of services or accommodation, sport and clubs. The procedures give effect to the University's obligations under Australian equal opportunity and anti-discrimination legislation.

2          Application of these procedures

2.1       These procedures apply to discrimination based on any of the following attributes:

  • race, colour, national or ethnic origin or nationality;
  • sex or gender, lawful sexual activity, sexual orientation, gender identity, marital status, pregnancy or potential pregnancy, breastfeeding or status as a parent or a carer;
  • religious or political belief or activity or industrial activity;
  • age, physical features, disability (past, present or imputed) or medical record;
  • employment activity (meaning a reasonable request for information about, or an expression of concern about, the provision of employment entitlements);
  • personal association with a person who is identified by reference to any of the above listed attributes; and
  • any other attribute protected under anti-discrimination law.

2.2       These procedures also apply to:

  • sexual, racial or disability harassment,
  • racial or religious vilification, and
  • victimisation due to involvement in making a complaint of discrimination or harassment or vilification, whether or not the complaint was dealt with under these procedures.

2.3       The discrimination or harassment covered by these procedures must occur in employment, education, the provision of services or accommodation, or in conducting sport or a club which is directly linked to Monash University.

2.4       Concerns about inappropriate conduct, including bullying, can only be dealt with under these procedures where there are clear elements of discrimination, harassment, vilification or victimisation involved.  These procedures are not available if another University process is being used to address the matter unless, after that process completed, the issue falling under these procedures has not been addressed at all.

2.5       Concerns that fall outside these procedures may be covered by other University procedures, such as -

3.      Coverage of these procedures [1]

3.1       These procedures apply to members of the University community, namely:

  • staff employed by the University in Australia;
  • students enrolled at the University in Australia;
  • contractors engaged by the University in Australia;
  • persons holding an adjunct appointment with the University in Australia;
  • visiting academics to the University in Australia.

3.2       These procedures extend to a person who is engaged in off-campus activities that are directly related to their relationship to the University.

For staff, this may include visiting an overseas campus, attending work-related conferences, or attending an out of hours work function.

For students it may include participating in a camp or field trip as part of their study, or attending University-operated student accommodation. It can include students engaging in other student experience activities arranged by Monash student associations for the benefit of University students.

3.3       An allegation that a student engaged in an act of discrimination is not dealt with under these procedures, but may be addressed under University Statute 4.1 Discipline.

3.4       These procedures cannot be used where the conduct is engaged in by an employee of another organisation. A University staff member or student who is concerned about discrimination, harassment, vilification or victimisation by a person not employed by the University can report their concerns to the Director, Equity and Diversity Centre (EDC). The Director may refer the matter as a complaint to the person's employer to be dealt with under the employer's procedures or advise the person how they may take this action themselves.

3.5       A former staff member or student who has a complaint of discrimination, harassment, vilification and victimisation against a person covered by these procedures may take action under these procedures. The ability of the University to enable action under these procedures will depend on the cooperation of the person raising the concern.

4          What is discrimination?

4.1       Discrimination can be direct or indirect.

4.2       Direct discrimination on the part of an educator, employer, provider of services or accommodation, or in conducting sport or a club, involves treating a person with an attribute unfavourably because of that attribute. In some circumstances, harassment based on an attribute may be discrimination.

4.3       Indirect discrimination involves imposing a requirement, condition or practice that operates to disadvantage a person with an attribute and it is not reasonable.

4.4       In employment, discrimination against a job applicant is prohibited in determining who to offer employment, the terms of an offer of employment or denying access to a benefit of employment.

4.5       Discrimination against an employee is prohibited when denying or limiting access to training, promotion or other benefits of employment, by terminating employment, or by subjecting the person to any other detriment including humiliation.  The definition of discrimination includes failing to meet the positive obligation to accommodate disability, and  to not unreasonably refuse to accommodate parenting or caring responsibilities.

4.5.1    Example: A selection panel decides not to short list a candidate believed to be over 60 years of age for a newly created senior position on the basis that this person is likely to retire in the next few years.

4.6       In education, discrimination is prohibited in deciding who to admit as a student, refusing to admit a student, the terms of admission as a student, denying access to a benefit provided to students, expelling the student or subjecting the student to any other detriment including humiliation. The definition of discrimination includes failing to meet the positive obligation to accommodate disability.

4.6.1      Example: A senior academic who selects students for supervision primarily on their gender based on a belief that students of that gender are easier to supervise.

4.7       Discrimination may be unintentional and still be dealt with under these procedures.

 5          What is harassment?

5.1       Harassment is unwelcome conduct that might reasonably cause a person to be offended, humiliated or intimidated. It can occur as a single incident or a series of incidents. Harassment covered by these procedures is harassment of a sexual nature or based on a person's disability or based on a person's race.

5.2       Sexual harassment includes an unwelcome sexual advance, an unwelcome request for sexual favours, or any other unwelcome conduct of a sexual nature. It may include:

  • offensive comments of a sexual nature;
  • sexual or smutty jokes;
  • comments, questioning or teasing about a person's alleged sexual activities or private life;
  • persistent unwelcome invitation/s, telephone calls or emails;
  • offensive hand or body gestures;
  • physical contact such as patting, pinching, touching or putting an arm around another person;
  • the display of sexually-suggestive material;
  • unwanted ongoing declarations of affection or approaches for affection (including gifts and being followed);
  • sexual assault and rape; and
  • use of University computer systems for the retention and distribution of sexually explicit material.

5.3       Harassment may be unintentional and still be dealt with under these procedures.

5.4       Harassment focuses on the impact of the conduct on the person affected and whether the person's reaction was reasonable in the circumstances. The absence of any objection or protest by the person affected does not mean that the conduct was welcome. Whether it was reasonable for the person affected to not object or request the conduct stop is assessed objectively, with regard to the circumstances of the person affected at the time. This will include any power relationship between the two persons (e.g. student/staff member, junior staff member/senior staff member, PhD student/supervisor). The person engaging in the conduct may not be aware of all of those circumstances related to the impact of the conduct, such as a person's pre-existing sensitivity to certain types of conduct. For this reason, it is advisable to not engage in conduct which could on any assessment be perceived to be harassment.

5.5       Conduct in the nature of harassment not covered by these procedures may be able to be dealt with under other University procedures (see section 2.5 above).

6          What is vilification?

6.1       Vilification is any form of conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of another person or class of person on the grounds of their race or religion. Such conduct can be a single event or series of events over a period. It may include the use of internet, Facebook, Twitter and e-mail to publish or transmit statements.

6.2       Conduct may not be vilification where it can be shown to be reasonable, undertaken in good faith and it represents genuine artistic, academic, religious or scientific endeavours.

7          What is victimisation?

7.1       To ensure concerns are expressed about conduct covered by these procedures, a person making or involved in a concern/complaint must feel secure in the knowledge that the University's procedures will be followed without reprisals. Victimisation is any detriment suffered because a person has made or been involved in the expression of a concern or making of a complaint about conduct covered by these procedures.

7.2       A concern about victimisation is dealt with in the same manner as a concern about discrimination, harassment or vilification.

8          Privacy

8.1       Persons involved in a matter raised under these procedures are required to respect the privacy of personal information and the sensitivity of the matters raised. Disclosure of personal information, such as the names of persons, details of allegations and information about any resolution achieved, should be limited so that only persons directly involved in a process are informed, and then only on a need to know basis.

8.2       Information collected, used and retained by an Adviser, Conciliator or Investigator under these procedures is collected, used, and stored in accordance with these procedures and privacy laws. The information is securely stored and used only for the purposes for which it was collected notes or as otherwise permitted by law.

8.3       Information exchanged as part of conciliation will only be used for the purpose of the conciliation, as agreed by the parties to the conciliation and as otherwise provided in these procedures.

9          Defamation

9.1       It is often asked whether expression of a concern or making a complaint about discrimination, harassment, vilification or victimisation is defamatory. Defamation is the communication of a statement about a person which causes that person's reputation with other people to be lowered, or causes them to be shunned or avoided or brought into ridicule.

9.2       It is not defamatory for an individual to confront a person privately, either in person or by letter, to tell them that their behaviour is unwelcome.

9.3       An allegation of harassment, discrimination, vilification or victimisation is not defamatory where it is made without malice (i.e. without ill intent) to a person with authority to receive it under these procedures (for example, an Adviser, or other person according to their role under these procedures). To ensure any communication is not defamatory it is essential that the following be observed:

  • a person must act honestly and in good faith in using these procedures;
  • a person wishing to communicate with another person about a matter coming under these procedures must do so in private (i.e. send written correspondence marked "private"); and
  • those persons involved with a role under these procedures (or who otherwise become aware of the matter) act within their roles, and according to these procedures.

 10        Criminal behaviour

10.1     The most serious allegations raised under these procedures may constitute a criminal offence. Physical molestation or assault, indecent exposure, obscene communications (including e-mail), sexual assault, rape and stalking are criminal offences. A person affected may elect to report such conduct to police.  When made aware of such a matter under these procedures, the Director, EDC may refer the matter to the Coordinator Safer Community Unit who may assist the person to make a report to police.

10.2     Where a matter is reported to police and it will interfere with the police investigation/action to continue to deal with the matter (or a related matter) under these procedures, the University will suspend action under these procedures. The need to suspend action is assessed on a case by case basis in consultation with police. If there is no risk of interference with a police investigation the matter may be dealt with under these procedures.

[1] Monash controlled and associated entities have separate procedures.

Responsibility

Students and staff
Co-ordinator Safer Community
Director, Equity and Diversity Centre

PART B – MAKING OR RESPONDING TO A COMPLAINT UNDER THESE PROCEDURES

11        Guiding principles

11.1     The University seeks to ensure that all members of the University community have access to information and support needed to prevent discrimination, harassment, vilification and victimisation, and respond to this conduct appropriately if it occurs.

11.2     The University encourages informal resolution of concerns in the first instance as close to the source as possible except in circumstances where the nature of the allegations or the circumstances in which they are said to have occurred make it inappropriate to do so.

11.3     Those responsible for advising, conciliating or investigating a complaint must act fairly and impartially, without bias and avoid a conflict of interest.

11.4      The person raising a concern will be supported to articulate the concern clearly and succinctly. The person about whom the concern is raised will be given a fair opportunity to know the allegation and its circumstances, and be given the opportunity and support to make a considered response.

11.5     All persons involved with these procedures are to be treated with respect and courtesy. Enquiries and concerns will be dealt with in a sensitive, fair and equitable manner. The University aims to deal with matters expeditiously while ensuring sufficient time to prepare and/or respond.

11.6     The sensitive nature of matters raised under these procedures is recognised and the privacy of personal information will be maintained by containing the sharing of that information to those directly involved, on a need to know basis. Files generated under these procedures are stored securely and, where applicable, according to Sections 17 and 19 of these procedures and no information is placed on the University records of any staff or student unless as an outcome of a substantiated complaint following a formal investigation.

11.7     Priority will be given to measures to protect the health and safety of persons while a matter is dealt with under these procedures and when that process completes. Persons using these procedures must not be victimised. Victimisation may be dealt with as an instance of serious misconduct.

11.8     The University encourages the reporting of conduct that contravenes these procedures, but does not tolerate vexatious or frivolous expressions of concern/complaints.  

11.9     Notwithstanding the University’s commitment to supporting parties to decide on how to progress their concerns under these procedures, in circumstances where the allegations are of  a sufficiently serious nature the University reserves the right to progress the matter directly to investigation or refer the matter to an alternate procedure or body to investigate.

11.10   The right of individuals to make complaints externally under relevant laws is not affected by action taken under these procedures. Where such a right is exercised action under these procedures may cease.

12        Process in summary

12.1     Where a concern is raised under these procedures, the grievance resolution process is followed in three consecutive stages:

       Stage 1: Advice and Assessment (Informal Resolution)

       Stage 2: Conciliation (Informal Resolution)

       Stage 3: Investigation and Determination

12.2     Stages 1 and 2 are informal processes. They allow parties to make informed decisions and assist them in resolving the issue through discussion. They do not involve an investigation or the weighing of evidence. No finding is made that the concern is proven or not proven as no formal complaint is made.

12.3     The University has trained Advisers to provide information and advice about these procedures and how they operate.  Advisers will explore with parties:

·         whether the concern falls under the jurisdiction of these procedures;

·         is suitable for informal resolution, conciliation or investigation under these procedures; or

·         would more suitably be dealt with by an alternate procedure.

12.4     Advisers will inform the Coordinator, Equal Opportunity: Information and Resolution Services (EOS) as soon as possible of all cases. Where conciliation or investigation under these procedures is being considered the Director, EDC will be consulted to assess the suitability of these options. In cases where serious allegations are involved the Director EDC will be consulted to assess whether informal resolution should not be used.

12.5 Conciliation (Stage 2) can be requested by a person who thinks they have been discriminated against, harassed, vilified or victimised, or a person who discovers that an allegation of discrimination, harassment, vilification or victimisation has been made against them. 

12.6 Stage 3 is a formal process and will be used when attempts at informal resolution have failed or an assessment has been made that the matter is not appropriate for informal resolution. It involves the lodging of a formal complaint, an investigation of the allegation(s), and an outcome being imposed on the parties.

13        Stage 1: Advice and assessment

13.1     Any person covered by these procedures may seek assistance from a listed Discrimination and Harassment Grievance Adviser (the Adviser).  Where possible it is best for an individual to act to resolve a concern by discussing it with the person directly, and where necessary with the support of an Adviser. This is usually the most effective way to address and resolve a concern.

13.2     Role of Advisers

13.2.1 The role of the Adviser is to act fairly and impartially to provide information and support to members of the University community who:

·           perceive that they may have experienced discrimination or harassment, or who believe an allegation of harassment or discrimination may be or has been made against them;

·           believe that they have been vilified, or who believe that an allegation of vilification may be or has been made against them; and

·           believe they have been victimised on account of being involved in (or being presumed to be involved in) an allegation covered by these procedures.

13.2.2 The role of the Adviser is to assist a person to make an informed choice about actions under these procedures. The same Adviser will not deal with more than one client in any particular case and shall refer a claim to another adviser where affected by a conflict of interest.

13.2.3 Assistance provided by the Adviser includes:

·           listening seriously and impartially to the concerns and perceptions of the person;

·           explaining the University's policy on discrimination, harassment, vilification and victimisation and the procedures available for resolving concerns of this nature;

·           exploring possible strategies by which the client might act to resolve the concern, for example – directly approaching the person with whom they have a concern; writing a letter; requesting the assistance of the appropriate manager or supervisor; assisting the person to document their concern; requesting the assistance of a conciliator; make a request to the Pro Vice-Chancellor with executive responsibility for equal opportunity (the Pro Vice-Chancellor (nominated by the Vice-Chancellor)) for an investigation (see section 15ff below);

·           accompanying the person as a support when they speak to the other person;

·           assisting the person to formulate a written summary of their concerns for conciliation to be sent to the other person or during conciliation under these procedures;

·           assisting the person to formulate their response to concerns to be conciliated or during the conciliation under these procedures;

·           assisting the person to document their complaint or their response to a complaint that is to be investigated or during an investigation under these procedures;

·           providing information about other options including the right to complain to a relevant external body;

·           encouraging a person to identify and seek out personal support to assist them;

·           providing support to the person until the matter is concluded, under these procedures; and

·           consulting with the Equity and Diversity Centre primarily through the Coordinator, Equal Opportunity: Information and Resolution Services (EOS) to assist with assessment and appropriate progression of matters under these procedures.

13.2.4 An Adviser should explain that they are not providing legal advice and that the person is free to consult another support person such as the relevant union, student rights or a lawyer.

13.2.5 The Adviser will discuss with the Director, EDC suspected criminal conduct or his/her belief that one of the parties may pose a threat to the safety of an individual or the community. The Director, EDC will then consult with the Coordinator, Safer Community Unit to determine any appropriate action. This may involve putting in place measures to address the safety risk. Where there are indications that an assault or stalking has taken place, the Coordinator, Safer Community Unit will provide information to the person about reporting the matter to police or seeking a protective court order and will assist the person to access these services.  See 10.2 for the impact of a police investigation on a matter being dealt with under these procedures.

13.2.6 In all cases where a person indicates a desire to pursue the matter under Stages 1 or 2 of these procedures, the Adviser will discuss the matter with the Coordinator EOS who will consult with the Director EDC. Where the matter is deemed of a sufficiently serious nature, and/or may involve potential misconduct or serious misconduct the Director EDC may determine to escalate the matter to investigation under these procedures, refer the matter to the Executive Director, Monash HR or the relevant Faculty Manager as a staff or student discipline matter respectively. 

14        Stage 2: Conciliation

14.1     Conciliation is a process in which the parties to a dispute, with the assistance of a neutral third party (the Conciliator), identify their respective concerns and any issues in dispute with a view to reaching an agreed solution, to enable them to continue to work or study in a manner acceptable to both. The Conciliator will determine the process for seeking a resolution and may make suggestions for terms of an agreement to resolve the concerns. The conciliation will actively encourage the parties to reach an agreement but will not make a decision on the concerns.

14.2     Process of conciliation

14.2.1  Where conciliation is requested by a person covered by these procedures, and an assessment has been made that conciliation is appropriate, (See 13.2.6), an Adviser will refer the matter to the Equity and Diversity Centre. The other person will then be invited to participate in a conciliation conference and if they agree to participate, a Conciliator will be appointed.

14.2.2   It is usual for all parties to agree that matters discussed in preparation for and at the conciliation are confidential.  The invited party will receive information about the conciliation procedure, a list of Advisers who can be contacted for support and an outline of the matter to be raised. The conciliation is scheduled with agreement of both parties and usually within two weeks of the request being made.

14.2.3  The calling of a conciliation conference does not indicate that there is a case to answer. It is an opportunity to discuss and resolve concerns and it is expected that the parties will participate in ‘good faith’.

14.2.4  Each party may elect to be accompanied to the conciliation conference by an Adviser, colleague or another person of his/her choice, but not a person who is a currently practising solicitor or barrister. The role of the accompanying person is to assist the person, not to act as an advocate.

14.2.5  The Conciliator is responsible for managing the process and to ensure that both parties:

·         have the opportunity at the conference to state their views on the matter and their desired outcome in the presence of the other, or separately at any stage of the process; and

·         are treated fairly and impartially and assisted to reach an agreed resolution without coercion.

14.2.6   The process may be terminated if in the Conciliator's view there can be no further progress made.

14.2.7   If the parties and the Conciliator agree, a relevant manager or any other person may be invited to attend a conciliation conference to assist in formulating a resolution.

14.2.8   If agreement is reached, the parties will be encouraged to sign a written record of the agreement at the end of the conciliation conference. It is usual for the parties to agree that the content of this agreement is confidential except to ensure that the University can give effect to the terms of the agreement.  In signing the agreement, parties accept that the documented resolution(s) wholly address the concerns raised in the conciliation. The Conciliator will sign as witness to the agreement. The agreement will be provided to the Director, EDC for safekeeping.

In addition, the Conciliator will keep a record of the conduct of the conciliation, who attended and the outcome which is to be held by the Director, EDC for safekeeping.

14.2.9   A Conciliator will discuss with the Director, EDC suspected criminal conduct or his/her belief that one of the parties may pose a threat to the safety of an individual or the community. The Director, EDC will then consult with Safer Community Unit to determine any appropriate action. This may involve putting in place measures to address an identified safety risk. Where there are indications of an assault or stalking has taken place, the Coordinator, Safer Community Unit will provide information to the person about reporting the matter to police or seeking a protective court order and will assist the person to access these services. See 10.2 for the impact of a police report on a matter being dealt with under these procedures.  The Director, EDC may refer the matter to the Workplace Relations or the relevant Faculty Manager as a staff or student discipline matter.

14.2.10 Evidence of anything raised or disclosed during a confidential conciliation will not be referred to in any other action taken under these or other University procedures, or a formal complaint process external to the University, except where required by law or as permitted under these procedures.

14.2.11  If conciliation has not been successful to resolve concerns, the parties have the option of proceeding to Stage 3.

15        Stage 3: Investigation and determination

15.1     Request for Investigation and Determination

15.1.1    An investigation can be requested following Stages 1 and 2. All matters will generally go through Stage 2 unless:

a.    conciliation has been refused by the other party, or

b.    the Director, EDC determines that conciliation is inappropriate.

15.1.2    A request to investigate should be addressed to the Pro Vice-Chancellor (nominated by the Vice-Chancellor) marked ‘Private' and provided to the Director, EDC. The request to investigate must be supported by a statement setting out the details of the complaint and the allegations made against the respondent. The complainant is expected to sign and date the written statement in the presence of the Adviser, or the Director, EDC. 

15.1.3    Only in exceptional circumstances may these procedures be used to resolve a complaint relating to discrimination, harassment, vilification or victimisation alleged to have taken place more than 12 months since the last alleged incident.

15.1.4    Only an allegation of harassment or victimisation made by a student about a student would be investigated under these procedures. For discrimination and vilification complaints other procedures (see section 2.5 above) may apply.

15.1.5   Before making a request, for an investigation a person is required to consult an Adviser.

15.2     Action on requests to investigate

15.2.1 On receipt of a request to investigate a complaint of discrimination, harassment, vilification or victimisation the complaint will be forwarded to the University Solicitor's Office for advice. After considering this advice, the Pro Vice-Chancellor (nominated by the Vice-Chancellor) will determine the appropriate method of proceeding to resolve the complaint. The options for proceeding may include:

·            investigation by a panel;

·            referral of the matter to an internal or external Conciliator;

·            an alternative procedure consistent with equal opportunity principles and procedural fairness which is appropriate in the circumstances of the case;

·            referral to the Coordinator, Safer Community Unit to investigate/take action;

·            referral for action under University disciplinary procedures for staff or students;

·            any other legal course of action where appropriate, including suspension of a staff member during the process of resolving the complaint, provided such suspension is in accordance with the staff member's workplace agreement or contract of employment.

15.2.2 The Pro Vice-Chancellor (nominated by the Vice-Chancellor) may determine to take no further action if a complaint is considered to be frivolous, vexatious, misconceived or lacking in substance.

15.2.3 Where the Pro Vice-Chancellor (nominated by the Vice-Chancellor) determines to investigate the complaint under these procedures, a copy of the Complainant's statement will be provided to the Respondent with up to 20 calendar days to submit a written reply. The Pro Vice-Chancellor (nominated by the Vice-Chancellor) may grant an extension of time in special circumstances. The respondent may seek the assistance of an Adviser or other person of his or her choice to prepare a reply, and will be advised of assistance available within the University.

15.2.4 The Pro Vice-Chancellor (nominated by the Vice-Chancellor) shall appoint a panel as soon as practicable which will meet within a reasonable time of the receipt of the respondent's reply. The panel will investigate report and make recommendations on appropriate action. Both sexes must be represented on the panel, which will consist of the following members:

(a)          nominee of the Pro Vice-Chancellor (nominated by the Vice-Chancellor) (convener) who will have expertise in equal opportunity law and/or the appropriate experience to convene such a panel; and

(b)          a nominee of the Pro Vice-Chancellor (nominated by the Vice-Chancellor) who is:

(i)            where the respondent is a staff member, a staff member of the University; or

(ii)           where the respondent is a student, a student of the University; and

(c)          a third person employed by the University with knowledge of the discipline/area of work in which the complaint arose.

15.2.5 Parties will be notified of the names of the panel members as soon as is practicable. Should either party wish to object to one of the panel members appointed on the grounds of a reasonable apprehension of bias they should write to the Director, EDC outlining the reasons for the objection within 7 calendar days of receipt of this notification.

15.3     Proceedings of the panel

15.3.1 The University will make every endeavour to provide a process for the complaint to be dealt with promptly.

 

15.3.2 The panel will inquire into the complaint and provide to the Pro Vice-Chancellor (nominated by the Vice-Chancellor) its findings on the facts in dispute and recommendations about appropriate resolution. The panel will be guided in all its investigations by the principles of equal opportunity law, University policy and procedures and the principles of procedural fairness.

15.3.3 Each party may elect to be assisted at any meeting with the panel by an Adviser, colleague, or other person (excluding a currently practising solicitor or barrister). Each party may elect to speak for themselves or through the person assisting.

15.3.4 The panel may interview any person they consider may be able to assist with its inquiries. A party may suggest to the panel persons who they consider should be interviewed.

15.3.5 Should a party refuse/fail to appear before the panel, the panel may conduct its inquiry and make its determination on the complaint in their absence.

15.3.6 Proceedings of the panel will be held in private.

15.4     Report of the panel

15.4.1 The panel will give reasons for its findings of fact and any recommendations in a written report to the Pro Vice-Chancellor (nominated by the Vice-Chancellor) normally within 21 calendar days of the conclusion of the investigation.

15.4.2 The Pro Vice-Chancellor (nominated by the Vice-Chancellor) will consider the panel’s report. The Pro Vice-Chancellor (nominated by the Vice-Chancellor) will provide to the complainant and respondent in writing details of the panel’s findings and reasons, together with the decision of the Pro Vice-Chancellor (nominated by the Vice-Chancellor) on any relevant recommendations.

15.4.3 The Pro Vice-Chancellor (nominated by the Vice-Chancellor) will take steps to prevent the complainant or the person against whom the complaint is made being subjected to reprisals or discrimination of any kind by any person by reason of the complaint having been made.

15.5     Substantiated complaints

15.5.1 If a complaint is found to be substantiated, the panel may recommend the Pro Vice-Chancellor (nominated by the Vice-Chancellor) take action including:

·            no further action be taken; and/or

·            arrange for counselling and/or training of the respondent;

·            advise the Vice-Chancellor to institute disciplinary action under the relevant workplace agreement or the staff or student disciplinary procedures.

15.5.2 When making its recommendations, the panel may consider evidence of any previous substantiated complaint and action against the respondent under these procedures or any other process.

15.5.3 The panel may recommend that the Pro Vice-Chancellor (nominated by the Vice-Chancellor) take such action as is necessary to:

·            restore the complainant to at least the same standing as at the time when the incident(s) occurred;

·            repair any pecuniary loss such as legal fees, salary, medical fees, which may have been suffered by the complainant as a consequence of the behaviour giving rise to the complaint or the making of the complaint; or

·            take relevant steps to prevent the complainant from being disadvantaged or subjected to reprisals of any kind by any person by reason of making the complaint.

15.5.4 The panel may make such other recommendations as it considers necessary to:

·            resolve the problem;

·            prevent similar problems arising in future;

·            ensure the continuation or restoration of good workplace relationships or an effective learning environment.

15.5.5 If the panel finds that the complaint was made in bad faith, it shall so advise the Pro Vice-Chancellor (nominated by the Vice-Chancellor) who may consider taking appropriate action.

15.6     Review of decision

15.6.1 No appeal can be made in relation to the finding as to whether or not discrimination, harassment, vilification or victimisation has occurred, or in regard to the decision of the Pro Vice-Chancellor (nominated by the Vice-Chancellor) on the panel’s recommendations. The complainant or respondent may request a review by the Vice-Chancellor on the grounds of a substantial procedural irregularity. If such an irregularity is deemed to have occurred, the Vice-Chancellor may direct that a new panel be formed to re-hear the complaint, in accordance with these procedures.

15.6.2 A request for review must be forwarded to the Vice-Chancellor by a party within 7 working days of that party receiving written advice of the Pro Vice-Chancellor (nominated by the Vice-Chancellor)’s decision. The Vice-Chancellor must nominate an independent senior member of staff to undertake the review and report on his or her findings within 14 working days.

 

Responsibility

Students and staff
Advisers
Coordinator, Equal Opportunity: Information and Resolution Services
Director, Equity and Diversity Centre
University Solicitor’s Office
Pro Vice-Chancellor (nominated by the Vice-Chancellor)
Vice-Chancellor and President

PART C – RESOURCES AND ARRANGEMENTS

16        Appointment of Advisers

16.1     The Pro Vice-Chancellor (nominated by the Vice-Chancellor) will, after receiving the advice of the Director, EDC appoint a sufficient number of male and female Advisers to provide access to staff and students.

16.2     The names of Advisers will be widely publicised to staff and students.

16.3     Advisers shall be members of staff and students who have been trained in interviewing techniques to appropriately deal with allegations of discrimination, harassment, vilification and victimisation, and briefed on relevant laws and procedures, prior to appointment.

16.4     The Director, EDC shall arrange the initial training of Advisers, provide continuing support and advice and convene regular meetings of the Advisers to discuss operation of these procedures.

16.5     The Pro Vice-Chancellor (nominated by the Vice-Chancellor) may, after receiving the advice of the Director, EDC, cancel the appointment of an Adviser.

17        Record keeping and reports of Advisers

17.1     The University is committed to maintaining privacy of personal information. All personal information collected under these procedures will be held and used in accordance with the Information Privacy Principles in the Information Privacy Act 2000 (Vic), and the Health Privacy Principles in the Health Records Act 2001 (Vic).

17.2     Clients should be informed that:

·            Advisers will keep notes on enquiries or complaints. These notes will be kept in folders clearly marked “Private” and stored securely accessible to the Adviser and the Director, EDC or nominee;

·            Notes should be kept in hard copy format or electronically with password protection. Notes are the property of the University not the client or the Adviser and are subject to privacy laws;

·            Clients have the right to access records in accordance with the privacy laws.

17.3     Advisers will keep accurate, concise notes setting out the relevant matter as described by the client (including the names and relevant details of persons involved), and the outcome of each interview. When the client initials the notes as a correct record they will be provided with a copy. The notes should include the client's preferred choice of action (if any) at that stage and any steps the Adviser has discussed with the client. All follow up or subsequent contacts should be noted in the same way. Advisers retain their notes securely until their support is concluded.

17.4     At the conclusion of an Adviser’s support or where the client decides not to proceed or has made no clear decision, the Adviser transfers his or her notes to the Director, EDC. The notes will be stored securely by the Director, EDC or nominee for a period of six years.

17.5     Advisers will provide the Director, EDC with a de-identified summary report in a standard format for each case in which they assist a client at the end of each quarter.

17.6     The collated information from the summary reports will be used for planning and reporting purposes, and to support the Director EDC to take appropriate action if required. No individuals will be identified but rather the nature of the complaint, the gender and status of parties, the method of resolution arising from the Adviser contact, and any relevant outcome.

17.7     Summary reports received by the Director, EDC are used primarily for statistical purposes to inform future preventative educational strategies.

18        Appointment and training of Conciliators

18.1     An Adviser receives additional specialist training in conciliation before applying to be appointed as a Conciliator. An Adviser will not act as a Conciliator in any matter in which he or she was initially consulted by one of the parties as an Adviser.

18.2     Where appropriate, the University may engage a suitably qualified external Conciliator if required.

18.3     The Pro Vice-Chancellor (nominated by the Vice-Chancellor) may, after receiving the advice of the Director, EDC, cancel the appointment of a Conciliator.

19        Record keeping and reports of conciliation

19.1     Conciliators will keep sufficient notes to conduct the conciliation process. If the conciliation continues over a period of time, the notes should be kept locked in a secure place and destroyed at the conclusion of the process.

19.2     The Conciliator will provide the Director EDC the names of the persons participating in the conciliation, the dates of any meetings, a report on the outcome of conciliation and a record of any written agreement reached.

19.3     All records of conciliations will be kept securely by the Director, EDC for a period of six years.

Responsibility

Advisers
Conciliators
Director, Equity and Diversity Centre
Pro Vice-Chancellor (nominated by the Vice-Chancellor)

PART D – ROLES AND RESPONSIBILITIES

20        Staff and students

20.1     Staff, students, contractors, adjuncts and visiting academics are responsible to ensure that they do not engage in any conduct in the nature of discrimination, harassment, vilification or victimisation in contravention of the Equal Opportunity Policy and prohibited by these procedures.

20.2     Staff, students, contractors, adjuncts and visiting academics are expected to:

·       understand their rights and obligations under these procedures;

·       not engage in, encourage or assist any conduct in the nature of discrimination, harassment, vilification or victimisation as defined in these procedures;

·       foster a work/education environment that does not tolerate discrimination, harassment, victimisation or vilification covered by these procedures;

·       report concerns that conduct prohibited under these procedures has taken place to their manager/course coordinator or under these procedures.

21   Managers and supervisors    

21.1     It is the responsibility of the supervisor, manager or head of department to take such steps as are necessary to ensure the work/study environment is free from all forms of discrimination, harassment, vilification and victimisation. This is done by monitoring the workplace, implementing educational strategies for all staff and students and, where a manager or head of department is concerned about how to discharge this responsibility, seeking advice from the Director, EDC. In cases involving serious allegations, this advice may be to refer the alleged conduct to the applicable staff/student discipline procedures for immediate investigation.

21.2     Supervisors, managers and heads of department are expected to familiarise themselves with these procedures and are required to:

·        Ensure that their behaviour provides a model of conduct in line with the principles of the policies underpinning these procedures;

·        Ensure that staff and students and any other person engaged to provide a service in their area are aware of these procedures by initiating appropriate training and education, and as far as it is practicable, ensure that the provisions within them are adhered to;

·        Remain informed about developments in these procedures, for example, by attending training and briefing sessions;

·        Inform staff and students that discrimination, harassment, vilification and victimisation will not be tolerated in the workplace and learning environment;

·        Take all reasonable steps to prevent discrimination, harassment, vilification and victimisation in the areas for which they are responsible, and promote flexible arrangements in the workplace where appropriate[1], seeking advice from the Director, EDC as needed; and

·        Exercise appropriate authority if they observe, or are informed of, unacceptable behaviour in the workplace or learning environment.

21.3     Whenever a supervisor, manager or head of department is approached by a person who thinks they have experienced discrimination, harassment, vilification or victimisation they should refer that person to an Adviser. Except in the most serious cases it is important to support the complainant to make their own decisions on how to progress their concerns.

22        Director, Equity and Diversity Centre

22.1     The Director, Equity and Diversity Centre or nominee has a responsibility to:

·            Support the University to take all reasonable steps to eliminate discrimination, harassment, vilification and victimisation;

·            Establish and maintain complaint resolution resources, including trained advisers and conciliators;

·            Provide information on how to access the Discrimination and Harassment Grievance Process within the University community;

·            Provide relevant information and awareness raising programs for staff and students;

·            Maintain secure notes and records of discrimination, harassment, vilification and victimisation complaints and enquiries lodged in accordance with these procedures;

·            Support and advise University personnel on how to deal with behaviour in their work or educational areas that could constitute discrimination or harassment;

·            Inform Divisional Directors and Deans of the frequency and type of discrimination, harassment, vilification and victimisation occurring in their area of responsibility, without identifying individuals involved;

·            Monitor and review the implementation of these procedures;

·            Assess the suitability of any matter of concern to proceed to conciliation or investigation under these procedures; and

·            Escalate matters of a sufficiently serious nature, and/or may involve potential misconduct or serious misconduct to appropriate senior personnel responsible for managing matters of that nature.



[1] Supervisors must not unreasonably refuse to accommodate requests from staff (including prospective staff) and contractors for workplace flexibility based on their obligations as parents or carers and must seek to ensure disability in staff and students is reasonably accommodated.

Responsibility

Students and staff
Managers and supervisors
Director, Equity and Diversity Centre

PART E - RELEVANT LEGISLATION

       Racial Discrimination Act 1975 (Commonwealth)

       Sex Discrimination Act 1984 (Commonwealth)

       Age Discrimination Act (2004) (Commonwealth)

       Australian Human Rights Commission Act 1986 (Commonwealth)

       Equal Opportunity for Women in the Workplace Act 1999 (Commonwealth)

       Disability Discrimination Act 1992 (Commonwealth)

       Health Records Act 2001 (Victoria)

       Information Privacy Act 2000 (Victoria)

       Equal Opportunity Act 2010 (Victoria)

       Racial and Religious Tolerance Act 2001 (Victoria)

       Charter of Human Rights and Responsibilities Act (2006) (Victoria)

       Monash University Act 2009 Sections 8.3(d) and (f)

Responsibility

n/a

PART F - FLOWCHART

Discrimination and Harassment Grievance Procedures

 Printable version of Flowchart

Responsibility

n/a

Content Enquiries: EDC Policies

University Policy Use Only:

Version Number: 1.0Effective Date: Contact: adm-PolicyBank@monash.edu