Human Resources

University Policy on Sexual Harassment

Policy No.
UP07/16
Function
Human Resources
Authoring Organisational Unit
Deputy Vice-Chancellor (Education) [305185]
Date Approved
01/11/1992 Revised 31/07/2017
Next Review Date
31/07/2019
Approving Body
Vice-Chancellor

The University of Western Australia

University Policy on: Sexual Misconduct

Purpose of the policy and summary of issues it addresses:

The purpose of this policy is to manage incidences of Sexual Misconduct at the University and to contribute to maintaining a campus culture of inclusivity and respect; upholding the rights of Employees and Students to fair treatment.

This policy expresses the behaviour expected of the University Community regarding Sexual Misconduct.

Definitions:

Complainant means an individual raising an issue, providing a notification or making a complaint about a matter that they wish the University to consider and for which specific outcome/s or resolution/s are explicitly or implicitly expected.

Duty of Care requires all Employees and Students to take reasonable care in view of reasonably foreseeable circumstances that may arise. Safety of Employees, Students and visitors on campus is the first priority in any situation.

Employee means an individual employed by the University under an Enterprise Agreement or a common law employment contract.

Respondent means a Students or Employee against whom claims relating to Sexual Harassment and Sexual Violence are made.

Student means an individual enrolled in a degree, diploma or certificate course of the University, or an individual enrolled on a non-award basis, or through University Extension as a continuing education student, in units offered within degree, diploma or certificate courses of the University.

Supervisor/Manager means an individual who is responsible for supervision of the Employee or Student.

University means The University of Western Australia.

University Community means all people who use the University's campuses or facilities for work, study or other authorised activity, and the University's campuses and facilities.

Vexatious Complaint means one that is made or pursued without reasonable grounds or made to harass or annoy, to cause delay or detriment, or for any other wrongful purpose.

Policy statement:

1 Sexual Misconduct

1.1 The University understands Sexual Misconduct to be instances of:

  • Sexual Harassment
  • Sexual Violence
  • Sexual Abuse

1.2 Sexual Harassment

1.2.1 Sexual Harassment is defined in legislation as conduct with a sexual component which is unwelcome, unsolicited and unreciprocated. Conduct with a sexual component includes physical, visual, verbal and non-verbal behaviour.

1.2.2 The University understands that Sexual Harassment includes, but is not limited to:

  • leering or staring
  • obscene sexual communications in any media including social networking
  • persistent following or stalking
  • persistent unwelcome invitations, telephone calls or emails
  • sending of sexually explicit emails or text messages
  • sexually suggestive words, gestures or sounds
  • unwanted ongoing declarations of affection or approaches for affection, including gifts display of sexually suggestive material use of University computer systems for the retention and distribution of sexually explicit material
  • unwelcome behaviour or contact of a sexual nature which offends, intimidates, embarrasses or humiliates an individual
  • unwelcome physical touching or familiarity, including deliberately brushing against someone, patting, kissing and embracing.

1.2.3 The University understands that Sexual Harassment involving persistent following or stalking, and indecent exposure, may be considered sexual assault and possibly a criminal offence. Any individual who is subjected to such incidents should seek advice and support concerning reporting the matter to the police and/or the Sexual Assault Referral Centre (SARC).

1.2.4 The University understands that Sexual Harassment may be perpetrated or experienced by people of any sexual orientation or gender identity.

1.2.5 The University understands that Sexual Harassment may be a single incident or a persistent pattern of unwelcome behaviour.

1.2.6 The University understands that Sexual Harassment does not include:

  • mutual attraction
  • consensual romantic involvement or friendship.

1.2.7 The University may consider behaviour to constitute Sexual Harassment if individual relationships change and non-consensual, unwelcome and unreciprocated behaviours continue.

1.2.8 Unwanted sexual touching and incidents that occurred before the age of 15 are not included; the University considers this Sexual Abuse.

1.3 Sexual Violence

1.3.1 The University understands Sexual Violence to be instances of:

  • Sexual Assault
  • Sexual Threat

1.3.2 The University understands that Sexual Violence involving a physically violent and/or coercive component, or threats of physical violence, such as physical molestation or assault, may constitute a criminal offence. Any individual who is subjected to such incidents should seek advice and support concerning reporting the matter to the police and/or the Sexual Assault Referral Centre (SARC).

1.3.3 The University understands that Sexual Violence may be perpetrated or experienced by people of any sexual orientation or gender identity.

1.3.4 The University understands that Sexual Violence may be a single incident or a persistent pattern of unwelcome behaviour.

1.3.5 Unwanted sexual touching and incidents that occurred before the age of 15 are not included; the University considers this Sexual Abuse.

1.4 Sexual Assault

1.4.1 The University understands Sexual Assault to be unwanted sexual acts or behaviours which an individual did not consent to, or was not able to consent to, through the use of physical force, intimidation or coercion, including but not limited to:

  • aggravated sexual assault (sexual assault with a weapon)
  • attempted rape
  • indecent assault
  • penetration by objects and forced sexual activity that did not end in penetration
  • rape (sexual penetration without consent).

1.5 Sexual Threat

1.5.1 The University understands Sexual Threat to be an act of a sexual nature carried out against an individual's will through the use of physical force, intimidation or coercion made face-to-face.

1.6 Sexual Abuse

1.6.1 The University understands Sexual Abuse to be Sexual Harassment and/or Sexual Violence and/or any other sexual activity involving a child (under the age of 15), beyond their understanding or contrary to currently accepted community standards.

2 Scope

2.1 Legislative Controls

2.1.1 The University understands that, under the Western Equal Opportunity Act 1984, the Commonwealth Sex Discrimination Act 1984 and Fair Work Act 2009, Sexual Harassment in employment, education, accommodation and in the provision of goods services and facilities is unlawful.

2.1.2 The University understands that under the Western Australian Occupational Safety and Health Act 1984, an employer is required to take remedial and preventative action, including disclosure of necessary information, in response to allegations of Sexual Misconduct, including but not limited to where:

  • there is a threat of physical harm or danger to an individual
  • the University's Duty of Care to Employees or Students may be compromised if no action is taken
  • there is an activity considered serious misconduct under the Corruption and Crime Commission Act 2003 that the University is obliged to report.

2.1.3 The University has both legal obligations and a Duty of Care to all its Employees and Students which may take precedence over the desire of a Complainant for confidentiality. Duty of Care considerations will include an assessment of the safety of people involved in the matter, and may require Employee relocation or adjustment of duties and reporting lines, or the University timetable, while the matter is addressed.

2.2 Institutional Scope

2.2.1 The scope of this policy extends to all University Community premises and includes but is not limited to the University:

  • campuses
  • managed employee accommodation
  • managed student accommodation
  • sporting and recreational clubs and facilities to the extent that they fall within the University Community
  • managed digital environments
  • activities and situations related to University business that are not conducted on University premises, including but not limited to:
  • field trips
  • conferences
  • students camps
  • inter-University events
  • parties and other social functions.

2.3 Sexual Misconduct on a Premises Outside of the University Community

2.3.1 The University understands that a member of the University Community may, while performing duties as an Employee, as a Student or as any other individual while undertaking official duties for the University, experience Sexual Misconduct on premises outside of the University Community. The University will liaise with the responsible authority to ensure proper procedures will be followed and will continue to provide support services.

2.3.2 The University understands that Sexual Misconduct conducted on a digital environment not managed by the University will be subject to this policy, where a Respondent is an Employee or Student, only where it impacts on their individual safety within the scope.

2.4 Individual Scope

2.4.1 The scope of this policy extends to all members of the University Community, including but not limited to:

  • the University's Employees
  • the University's Students
  • individuals not employed by the University that undertake official duties for the University

2.5 Sexual Misconduct by an Individual Outside of the University Community

2.5.1 The University understands that a member of the University Community may, while performing duties as an Employee, as a Student or any other individual while undertaking official duties for the University, experience Sexual Misconduct by an individual outside of the University Community. In such circumstances, the University will liaise with the responsible authority to ensure proper procedures will be followed and will continue to provide support services.

2.5.2 The scope of this policy extends to all individuals of the University Community performing duties as an Employee, as a Student or any other individual while undertaking official duties for the University while performing those duties on premises outside of the University Community.

3 Intent to Commit Sexual Misconduct

3.1 The University, in accordance with the Western Australian Equal Opportunity Act, considers behaviour to be Sexual Misconduct if an individual harassed is, or has reasonable grounds for believing that rejection, refusal or objection to a request, advance or other conduct will disadvantage them in any way related to their working, studying or living environment. Disadvantage here also includes psychological and emotional distress affecting that individual's ability to pursue their usual work, study or individual activities.

3.2 The University will not consider the intention of a Respondent in determining if Sexual Misconduct has occurred.

3.3 The University will consider the perception of a recipient (the Complainant) of conduct by a Respondent in determining whether Sexual Misconduct has occurred.

3.4 The University does not consider it necessary for the Complainant to have told a Respondent that their behaviour was unwelcome for the behaviour to constitute Sexual Misconduct.

4 Employee and Student Rights and Responsibilities

4.1 The University understands that all Employees and Students have a right to participate in an environment free from Sexual Misconduct. The University expects all Employees and Students to prevent Sexual Misconduct and contribute to maintaining a campus culture of inclusivity and respect, and to uphold the rights of Employees and Students to fair treatment.

4.2 The University expects all Employees and Students to comply with the Western Australian Equal Opportunity Act 1984, Commonwealth Sex Discrimination Act 1984 and Fair Work Act 2009, and all other relevant legislation.

4.3 Vexatious Complaints

4.3.1 If the complaint is found to be vexatious, the University may take action against the complainant employee under the University's misconduct procedures contained within the Schedules under the relevant Enterprise Agreement. In the case of a vexatious complaint made by a student, UWA Statute No. 17 and the Regulations made pursuant to that Statute apply.

4.4 Conflict of Interest

4.4.1 No individual should be placed in a situation where there is real or perceived conflict of interest. If a complainant or respondent believes that a real or perceived conflict of interest exists when a matter involving them is to be investigated, they can ask for an alternative case manager to be appointed.

4.4.2 A conflict of interest includes any circumstance, whether actual or perceived, arising from conflict between the performance of public duty and private or individual interests. All parties involved in the preliminary inquiry into and possible resolution of complaints of sexual harassment will ensure:

  • they have no conflict of interest or bias in relation to any party to the complaint
  • there is no perception by the parties that a conflict of interest exists
  • they adhere to the University's Code of Ethics and Code of Conduct
  • Individuals who have concerns about perceptions of possible conflict of interest or partiality should exclude themselves from the process, refer their complaint to their Manager, or seek advice from within Human Resources.

5 Supervisors and Managers

5.1 The University expects that Supervisors/Managers take appropriate action using the procedures associated with this policy when they become aware of instances of possible Sexual Misconduct, even without a complaint being lodged.

5.2 The University expects Supervisors/Managers to manage Sexual Misconduct appropriately and contribute to maintaining a campus culture of inclusivity and respect, and to uphold the rights of Employees and Students to fair treatment by:

  • making sure Employees and Students are familiar with this policy
  • modelling exemplary behaviour in this regard themselves
  • ensuring that Employees and Students are aware of the University's Code of Ethics and Code of Conduct
  • making known names and locations of Employees, who are able to provide preliminary advice and assistance
  • taking early action when they become aware of instances of possible Sexual Misconduct, even without a complaint being lodged
  • following up promptly when a Sexual Misconduct matter is raised.

6 Breach of Policy

6.1 Failure to comply with this policy by a member of the University Community may be considered a breach of the Code of Ethics and Code of Conduct and may result in disciplinary action.

Procedures:

7 Seeking Support

Someone who has experienced Sexual Misconduct can seek support from a range of people across campus and external to the University.

7.1 On campus:

7.1.1 Employees and Students

  • UWA Security for issues of safety on campus: (+6 1 8) 6488 2222 (emergencies, 24 hrs) or (+61 8) 6488 3020 (non-emergencies).
  • UWA Medical Centre: (+61 8) 6488 2118, open Mon-Fri 8.30am to 5pm during semester, and 9am to 5pm during University holiday periods.
  • UWA Counselling and Psychological Services: (+61 8) 6488 2423, open Monday to Thursday 8.30am to 4.30pm and Friday 8.30am to 4.00pm with emergency walk-in appointments available.

7.1.2 Student Specific

  • UWA Guild Student Assist: (+61 8) 6488 2292, open Mon-Fri 8.30am to 5pm
  • Residential Adviser or Head of College (if you are in residence).

The University's Health Promotion Unit also provides a range of online resources to students in relation to sexual health, including information on consent and sexual violence.

7.1.3 Employee Specific

UWA Employee Assistance Program: 24/7 confidential counselling to Employees and immediate family for individual or work problems, PeopleSense 1300 307 912

7.2 External:

8 Taking Action

8.1 Where appropriate and where an individual feels safe to do so, they are encouraged to raise their concern with the other individual directly. Taking action can be as simple as:

  • talking to the individual, or sending them an email, telling them what it is you have a concern about and asking them to stop doing it
  • seeking appropriate support and advice.

8.2 Where it has not been appropriate to approach the individual directly, or where this step has been taken but the matter is still not resolved, an individual can consider making a Disclosure or a Report to the University. Not speaking directly to the individual(s) who have caused the concern does not prevent someone from making a Disclosure or Report.

8.3 Disclosures and Reports

8.3.1 An Employee or Student who thinks they may need some accommodation in their workplace or study, or who wants the University to investigate what happened can make a Disclosure and/or a Report to the University.

8.3.2 Making a Disclosure starts a process of information and support provision, which can include assistance with making a Report, but does not start an investigation.

8.3.3 Making a Report does start an investigation (assuming the University has the authority to investigate) and can include a referral to the Disclosure Officer(s) for information and support provision as part of the process.

8.3.4 The decision to make a Disclosure and the decision to make Report are separate decisions. They are both confidential processes but there may be limits to confidentiality, particularly where the University is required to disclose information to external agencies or investigate.

9 Making a Disclosure

9.1 Disclosures are made to the Disclosure Officer. Appointments can be made by phone on 6488 2427 or by email to disclosure@uwa.edu.au

9.2 No information about the Sexual Misconduct is required in the email; just a statement that the individual wishes to make a Disclosure, their full name, and their student/employee ID.

9.3 A support individual such as a friend, family member, colleague or Guild Student Assist Officer can attend a meeting and where unable to come onto campus, the Disclosure Officer will negotiate an alternative method of contact.

9.4 A Disclosure does not have to relate to a current or recent matter, and does not have to involve a member of the University Community.

9.5 Where Sexual Misconduct is first raised with another Employee, that Employee will support a referral to the Disclosure Officer.

9.6 The Disclosure Officer will:

  • advise on support services both on campus and external to the University
  • discuss accommodations that may be available including:
  • safety planning and implementing safety measures
  • academic accommodations and/or class schedule changes
  • temporary work reassignment, location reassignment, or scheduling changes
  • emergency funding for students
  • student residence re-location or short-term emergency student housing.
  • retain a summary of the Disclosure without any individual identification for University reporting process.
  • create a confidential file where accommodations are sought to retain a record. These records are not stored in a student or employee file.
  • make appropriate support services and accommodations available to members of the University Community on the basis of a Disclosure, regardless of whether there is a Report; a report to the police; or a report to a support agency such as the Sexual Assault Referral Centre (SARC).

9.7 In seeking accommodations, the Disclosure Officer needs to identify the individual for whom they are being sought, but does not need to provide any details about the Disclosure.

9.8 To the greatest extent possible, the University will respect an individual's choice to not make a Report and will keep the Disclosure confidential. In exceptional circumstances, where required by law or where there is a risk of significant harm to that individual's health and safety or another individual's health or safety, and at the sole discretion of the Disclosure Officer, the University may do one or both of the following:

  • refer the matter to the Complaint Resolution Unit as a Report in which case the individual who Disclosed has the right not to participate in any subsequent Investigation
  • notify third parties, such as the police or child protection authorities.

9.9 If the University takes any action under clause 9.8, the Disclosure Officer will notify the individual who made the Disclosure and will ensure that appropriate support services are made available to them.

10 Making a Report

10.1 Anyone directly subjected to Sexual Misconduct, including an individual who is not a member of the University Community, can make a Report against a member of the University Community. Reports can be made by:

10.2 Anyone directly subjected to Sexual Misconduct, including an individual who is not a member of the University Community, can make a Report against a member of the University Community. An individual who is subjected to Sexual Misconduct and makes a Report is called the Complainant.

10.3 An individual can submit a Report to the University and pursue other processes external to the University, including reporting to the police, Equal Opportunity Commission or the Australian Human Rights Commission.

10.4 If the University commences an investigation and an external process is also being pursued, the University may continue or suspend its investigation (after consultation with the Complainant).

10.5 All Reports are received by the Complaint Resolution Unit. This includes anonymous reports and reports from UWA Security.

10.6 A Report to the University does not normally result in a report to the police, although in exceptional circumstances, where required by law or where there is a risk of significant harm to anyone's health or safety, the University may have to notify third parties, such as the police. If such action is taken, the University will notify the Complainant and will ensure that appropriate support services are made available to that individual.

10.7 Any Report received in the Complaint Resolution Unit will be assessed to check a number of matters including:

  • any safety or other risks associated with the Report and any investigation arising from it
  • where the Report was not made by the individual directly affected, that they are advised of the Report and are able to talk about the Report and the anticipated process that the University will take to consider it
  • that there is sufficient information to proceed
  • any requirement for the University to notify an external body, such as to the Public Sector Commission (where the respondent is an employee)
  • that where Reported by the individual directly affected, the individual understands the complaint process and possible implications for them, before making a Report
  • the appropriateness of having the complaint investigated only under the Complaint Policy, or if there are allegations that need to be investigated under the University's applicable discipline process
  • Human Resources will be notified of any Report in which an Employee is either the complainant or respondent. Reports involving only Employees will be managed by Human Resources, including any investigation or disciplinary process. Reports involving both an Employee and a Student will be managed by both Human Resources and the Complaint Resolution Unit.

10.8 Anonymous and third party reports

10.8.1 Anonymous Reports or Reports of Sexual Misconduct made by a third party (someone other than the individual who was directly subjected to the Sexual Misconduct) can also be submitted to the Complaint Resolution Unit.

10.8.2 The University may be unable to proceed with an Investigation involving anonymous or third party allegations due to a lack of evidence from the individual who was directly subjected to the Sexual Misconduct, or where proceeding would not allow for procedural fairness.

10.8.3 The Complaint Resolution Unit may take other steps, including an approach via the third party to see if the individual affected would consider making a Report.

10.8.4 Where other sufficient evidence exists and where procedural fairness could be met, the University may decide to proceed with an investigation. In such cases, the individual who was directly subjected to the Sexual Misconduct has the right to be advised of the investigation and not participate.

10.8.5 If the University is unable to proceed with an investigation involving anonymous or third party allegations, the Report will be retained by the Complaint Resolution Unit. It will be kept strictly confidential, and access to it will be limited.

10.9 Conflict of Interest

10.9.1 A perception of a conflict of interest may be seen to exist where it would be likely that an individual might reasonably fear that a more senior staff member managing a Report might be influenced by factors other than employment management considerations.

10.9.2 The same reasoning applies to an employee with teaching or academic supervision responsibilities where factors other than proper academic management considerations might also create a perception of bias in the mind of a student. While a conflict of interest must always be acknowledged, depending on the circumstances, it may not always be necessary to act upon such a conflict. However, if there is any doubt, advice must be sought from Human Resources (Employees) or the Complaint Resolution Unit.

11 Investigating reports - complaint and discipline procedures

11.1 A Report may be investigated as a complaint and/or a discipline process. At any point in considering a Report where it is determined that there is sufficient evidence, or where the matter is serious, the matter can be referred directly into the relevant disciplinary process:

11.2 Investigating Reports - complaint procedures

11.2.1 Where a Report indicates a matter that can be resolved informally or where there is insufficient evidence for referral to a discipline process, the Report will be considered under the University Policy on: Student Complaint Resolution, or under the grievance procedures in the relevant Enterprise Agreement .

11.2.2 These complaint/grievance processes allow for informal resolution of matters and an investigation of a complaint matter where needed.

11.2.3 These steps should establish whether resolution of the matter can be achieved in a just, prompt and confidential manner at the local level.

11.2.4 Care should be taken not to pre-judge either party or to dismiss a matter as trivial. A range of strategies can be used in resolving the complaint whilst ensuring that principles of procedural fairness are observed.

11.2.5 Case managers will liaise with relevant areas of expertise to obtain information.

11.2.6 For the purposes of these procedures, an Employee responding to a complaint or allegation(s) of Sexual Misconduct is referred to as employee respondent and a Student responding to a complaint or allegation(s) of Sexual Misconduct is referred to as student respondent.

11.2.7 During either the informal or formal steps, a complaint investigation can meet the requirements of the initial inquiry stage of a discipline process. If disciplinary action is required, the matter should be referred to Employee Relations in the case of an employee, or to the Complaint Resolution Unit in the case of a student, so that the matter can be dealt with under the appropriate regulations. However, even if the matter can be resolved at a local level, it may be important to utilise support from other areas of expertise in order to manage the situation effectively and also for reporting purposes.

11.2.8 Where no matters are substantiated or identified as requiring consideration under the relevant discipline procedures, a complaint will be found not justified and closed. This decision can be appealed (procedures clause 12).

11.3 Initial (preliminary) inquiry

11.3.1 Where the University determines that a matter(s) arising from a Report may require disciplinary action, it should be referred to:

11.3.2 This decision can be made on receipt of a report or during the complaint resolution process.

11.3.3 Where the immediate Manager/Supervisor of an employee respondent is not the appropriate case manager by virtue of conflict of interest, because they are not an Employee or it is otherwise unsuitable, an alternative individual will be appointed to conduct the preliminary enquiry. This alternative individual shall be determined by the Director or Human Resources.

11.3.4 Where an initial inquiry determines that an allegation does not meet the required standard of proof, no further action will be taken.

11.3.5 Where an initial inquiry determines that an allegation is of sufficient substance the University will investigate under the relevant discipline procedure.

11.4 Investigation

11.4.1 All parties to an investigation will be afforded procedural fairness and have the right to have a support individual with them.

11.4.2 The Complaint Resolution Unit will investigate, or cause to be investigated, an allegation of Sexual Misconduct. Where the respondent is an employee, this will be referred to Employee Relations. Where the respondent is a student, the investigation will be undertaken by the Complaints Resolution Unit. Both areas responsible for an investigation may appoint an external investigator.

11.4.3 The Vice-Chancellor and/or Director of Human Resource will consider and determine the suspension of an employee respondent during an investigation or termination. These decisions will be made in accordance with the relevant Enterprise Agreement.

11.4.4 The Deputy Vice-Chancellor (Education) will consider if a student respondent should be suspended during an investigation and any determination of exclusion or expulsion will be made in accordance with the Regulations for student conduct and discipline.

12 Appealing University decisions

12.1 A complainant who is unhappy with a University decision under the complaint/grievance procedures should refer to the relevant appeal steps in University Policy on: Student Complaint Resolution (Students), or the relevant Enterprise Agreement (Employees).

12.2 A respondent who is unhappy with a University decision regarding an allegation of Sexual Misconduct should refer to the appeal process in Regulations for student conduct and discipline (Students) or the relevant Enterprise Agreement (Employees).

TRIM File No:

Contact position:

For staff: Manager, Employee Relations

For students: Manager, Student Wellbeing

Related Policies or legislation:

Academic Staff Agreement

Fair Work Act 2009

Professional & General Staff Agreement

Sex Discrimination Act 1984

University Calendar, Section D - Regulations for Students Conduct and Discipline

University Statute 17

UWA Child Care Employees Agreement 2015

UWA ELICOS Teachers Agreement 2015

WA Corruption and Crime Commission Act

WA Equal Opportunity Act 1984

WA Occupational Health and Safety Act 1984