Human Resources

University Policy on Sexual Harassment

Policy No.
UP07/16
Function
Human Resources
Authoring Organisational Unit
Equity and Diversity Office
Date Approved
01/11/1992 Revised 26/04/2012
Next Review Date
01/04/2017
Approving Body
Senior Deputy Vice-Chancellor And Registrar

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The University of Western Australia

University Policy on: Sexual Harassment

Purpose of the policy and summary of issues it addresses:

This policy details the University's expectations of employees and students in respect of conduct that constitutes sexual harassment. It explains the procedures for investigation of all complaints of sexual harassment, and the steps towards achieving an harassment-free campus.

Sexual Harassment is unwelcome behaviour or contact of a sexual nature which offends, intimidates, embarrasses or humiliates a person. Sexual harassment is not about sexual attraction: it is about inappropriate and unacceptable behaviour towards a member of the University community which may be detrimental to their study, employment or accommodation.

Definitions:

Complainant means the person 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 students, employees and visitors on campus is the first priority in any situation.

Duty of Confidentiality requires Employees to maintain confidentiality with respect to personal information, but requires them to disclose information when serious concerns arise regarding the safety of an individual or others.

Employee means a person employed by the University who has an ongoing, fixed term or casual contract.

ERMS means Employee Relations & Management Services at the University.

Respondent means a student or employee against whom claims relating to sexual harassment are made.

Student means any person who is enrolled in a course through the University or University Extension.

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

University means The University of Western Australia.

University Community refers to all people who frequent the University campus.

Vexatious Complaint is a complaint that has been instituted with no reasonable grounds for asserting that the alleged conduct occurred.

Victimisation is a separate but related form of unlawful behaviour. The term refers to any unfavourable treatment of a person by reason of their involvement with a sexual harassment enquiry or complaint.

Policy statement:

1 Overview

The University is committed to maintaining a campus culture of inclusivity and respect, upholding the rights of employees and students to fair treatment. Sexual harassment has no place in such an environment. Sexual harassment is a serious issue that undermines morale and can adversely affect the ability of Employees and Students to achieve their full potential within the University. Such behaviour is unacceptable and all complaints will be dealt with fairly and promptly. Any Employee or Student who is found to have sexually harassed another member of the University community may be subject to penalty.

2 Scope

Under the Western Australian 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. This extends to all of the University's sites and includes the University's Employee and Student accommodation and all UWA sporting and recreational clubs and facilities to the extent that location/personnel are under the control and administration of the University.

The policy also extends to activities and situations related to the University and University business that may not be conducted on University premises. Examples include field trips, conferences, student camps, inter-University events, staff Christmas parties and other functions.

Where a matter arises between a University Employee or Student and a person not employed by the University but undertaking official duties for the University, the matter will be dealt with according to this policy. When a complaint of sexual harassment is raised against a person who is not an Employee of the University, and not undertaking official duties for the University but for another employer, the University will liaise with that person's employer to ensure that the matter is dealt with promptly using the most appropriate procedures.

Students or Employees on placement outside the University are covered by the policies of the organisation with which they are placed. In the event of a Student experiencing sexual harassment while on placement the University, as part of its Duty of Care, will liaise with the other organisation to ensure that the matter is dealt with promptly using the most appropriate procedures. If a Student or Employee on placement is named as a Respondent in a sexual harassment complaint while on placement this policy will apply.

3 Examples of sexual harassment

All relevant Acts define sexual harassment 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.

Sexual harassment includes, but is not limited to:

  • physical molestation or assault;
  • unwelcome physical touching or familiarity, including deliberately brushing against someone, patting, kissing and embracing;
  • sexually suggestive words, gestures or sounds;
  • persistent following or stalking,
  • indecent exposure; and
  • obscene communications in any media, including social networking.

Sexual harassment may be perpetrated or experienced by people of any sexual orientation or gender identity. It can be a single incident or a persistent pattern of unwelcome behaviour.

Any University work, living or study environment that could be deemed hostile to a person in a sexual context is considered to be inappropriate by the University. This includes an environment where sexually explicit or belittling written or pictorial information is circulated or displayed in any form including print, email, SMS/MMS communications, by mobile phone cameras and, where specifically directed toward a person, on social networking websites.

4 What sexual harassment is not

Sexual harassment is not mutual attraction, consensual romantic involvement or friendship. Behaviour can constitute sexual harassment if the interaction changes from being based on mutual attraction, friendship or respect to non-consensual, unwelcomed and unreciprocated interactions.

5 When sexual harassment is a criminal offence

Sexual harassment involving a physically violent and/or coercive component, or threats of physical violence, such as physical molestation or assault, persistent following or stalking, and indecent exposure, may be considered sexual assault and possibly a criminal offence. Any person 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).

6 Duty of Care

The University as an employer is required to comply with the WA Occupational Safety and Health Act 1984 including when implementing remedial and preventative action, which may be required in response to allegations of sexual harassment. Remedial and preventative action (including disclosure of necessary information) are required under this policy;

  • where there is a threat of physical harm or danger to a person; or,
  • where the University's duty of care to Employees or Students may be compromised if no action is taken; or,
  • where there is an activity considered serious misconduct under the Corruption and Crime Commission Act that the University is obliged to report.

The University has both legal obligations and a Duty of Care to all its Employees and Students which may take precedence over a Complainant's desire 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.

7 Determining when sexual harassment has occurred

The Commonwealth Sex Discrimination Act stipulates that sexual harassment has occurred in circumstances in which a reasonable person, given all the circumstances, would anticipate the possibility of the person harassed being offended, humiliated, or intimidated because of the conduct.

The WA Equal Opportunity Act states that the conduct will be deemed sexual harassment if the person harassed is, or has reasonable grounds for believing that rejection, refusal or objection to the request, advance or conduct will disadvantage them in any way related to their study, employment, or accommodation. Disadvantage here also includes psychological and emotional distress affecting the person's ability to pursue their usual work or study.

It is not necessary for the complainant to have told the harasser that the behaviour was unwelcome for the behaviour to constitute sexual harassment.

It is not the intention of the person accused of sexual harassment that determines whether sexual harassment has occurred. It is the perception of the recipient of that conduct that determines whether the matter is considered by them to be sexual harassment.

Guidelines for determining when Sexual Harassment has occurred:

Circumstances to be taken into account would include but not be limited to the age, sex, marital status, sexual orientation, religious belief, ethnic or cultural background, disability or medical condition of the person alleging that sexual harassment has occurred.

Lack of objection by the person experiencing the sexual harassment does not imply that the conduct was welcome. In many cases, apparent consent might be based on intimidation or fear. Sexual co-operation may occur because a student or employee consents to inappropriate behaviour out of fear of the consequences if they do not. Sexual harassment in this context can also include implied career or study rewards for sexual co-operation, or an implied detriment to the person's career or study if they do not consent.

The fact that not everybody would be offended by the behaviour does not mean that it will not amount to sexual harassment. Some forms of sexual conduct considered innocuous or trivial by some people may be considered offensive by others. Behaviour that has been acceptable to a person in one set of circumstances may not be acceptable in another. Furthermore, behaviour which is acceptable in some cultures may be regarded as unacceptable or offensive in others. This also applies to situations where the conduct has previously been tolerated within a particular work or learning environment and now is not.

8 Employee and Student Rights and Responsibilities

All employees and students have a right to participate in an environment free from harassment. All employees and students have a responsibility to uphold the University's policy on the prevention of sexual harassment, and to comply with the Western Australian Equal Opportunity Act, Commonwealth Sex Discrimination Act and Fair Work Act, and other relevant legislation.

9 Supervisors and Managers

Supervisors/Managers have a particular responsibility to promote and support the University's sexual harassment policy, and to take appropriate action in circumstances where they become aware of instances of possible sexual harassment, even without a complaint being lodged. Where the Complainant decides to lodge a complaint, the process stipulated in this document is to be followed.

Supervisors/Managers and have a responsibility to ensure their areas are free from sexual harassment by:

  • making sure Employees/Students are familiar with this policy;
  • modelling exemplary behaviour in this regard themselves;
  • ensuring that Employees and Students are aware of appropriate and acceptable standards of behaviour;
  • making known names and locations of staff, such as the Equity and Diversity Advisers, who are able to provide preliminary advice and assistance;
  • taking early action when concerns are expressed even in the absence of a complaint of sexual harassment; and,
  • following up promptly when a sexual harassment matter is raised.

All Managers/Supervisors who are the first point of contact for the complainant are encouraged to contact the Associate Director, Equity and Diversity for advice in the first instance, but may also seek advice and support from elsewhere such as the Manager, Complaints Resolution Unit or Human Resources.

Any improper conduct observed should be reported to a Supervisor, Manager, or other appropriate person such as an Equity and Diversity Adviser ( http://www.equity.uwa.edu.au/welcome/advice_and_assistance/equity_and_diversity_adviser_scheme2), the Associate Director, Equity and Diversity, or the Manager, Complaints Resolution Unit ( http://www.complaints.uwa.edu.au/?p=156064).

10 Procedural Fairness

Procedural fairness to both complainant and respondent is to be ensured. Procedural Fairness may include:

  • providing sufficient opportunity for the complainant to present their case;
  • giving reasonable notice to all parties of any interviews or meetings regarding the complaint;
  • discussing the complaint through separate interviews with the complainant and respondent, or through a joint meeting consented to by the parties;
  • providing mediation to resolve the complaint, if appropriate given the nature of the allegations and agreed to by the parties.

PROCEDURES

Individuals subjected to or witnessing sexual harassment:

The University encourages individuals to seek advice and support within the University in the first instance. Attempts should be made to resolve the complaint within the University where this is possible and appropriate. It is anticipated that most complaints will be resolved at the local level.

1. Taking Action

If possible the Complainant should take action and state an objection directly to the respondent.

Taking action can be as simple as:

- speaking up and making it clear to the respondent that you find such behaviour unacceptable;

- seeking appropriate support and advice; and

- promoting mutual respect.

If the Complainant feels unable to do this, or if this approach does not result in a cessation of the behaviour, the Complainant should seek advice.

2. Seeking Advice

The complainant can seek advice from one of the following support areas:

For Students:

- Associate Director, Equity and Diversity Equity and Diversity Advisers

- Head of School

- The Guild of Undergraduates

- UWA Counselling Services

- UWA Medical Centre

- Manager, Complaints Resolution

For Employees:

- Associate Director, Equity and Diversity

- Equity and Diversity Advisers

- Supervisor or Manager

- Head of School or equivalent

- Employee Assistance Program

- Manager, Complaints Resolution

- ERMS

- Relevant Union (for members)

- Safety & Health

Personnel from support areas should listen to the complainant with respect and empathy, providing information and support to the complainant.

The provision of advice can include:

- assisting the Complainant in clarifying whether the offending behaviour constitutes sexual harassment;

- informing the complainant of their rights as well as the rights of the respondent;

- discussing ways in which the problem might be resolved by the complainant, with or without intervention by a third party;

- identifying sources of referral and support where appropriate, including medical, police, counselling and other relevant support services;

- assisting the complainant in clarifying their options for resolving the problem; and,

- discussing the option of mediation and formal investigation of complaints.

If the matter is resolved to the satisfaction of the Complainant after advice has been received, it will be closed. Staff must heed mandatory records and recording procedures (See Recording and Records (below)) and confidentiality requirements (see Confidentiality and Privacy (below)).The support area that advises and supports the complainant is advised to follow the matter up after a reasonable period of time to determine whether the matter remains resolved.

If the matter is not resolved and/or potentially requires further action, the complainant can lodge a complaint.

3. Lodging a Complaint

Where the Complainant decides to lodge a complaint, they have a right to access support and advice from any of the areas listed in point 2 (above). Throughout the process both the complainant and the respondent may have a support person with them. Support persons are to be made aware of the University's confidentiality requirements (below).

The complainant should seek advice as to whether the behaviour warrants reporting to an authority (e.g. the Police), or to a support agency such as the Sexual Assault Referral Centre [SARC]).

The complaint should be directed to the respondent's immediate Supervisor who can consult with ERMS, Safety and Health, Equity etc. Where a conflict of interest (whether actual or perceived) exists, the complaint should be directed to the Supervisor or Manager of that immediate Supervisor. This person is responsible for lodging the complaint with the Manager, Complaints Resolution Unit or logging it into the Complaint handling database.

4. Preliminary Inquiry

A preliminary inquiry should serve to establish whether resolution of the matter can be achieved in a just, prompt and confidential manner at the local level. Care should be taken by the Supervisor not to pre-judge either party or to dismiss a matter as trivial. The Manager/Supervisor may utilise a range of strategies in resolving the complaint whilst ensuring that principles of procedural fairness are observed (see above).

The preliminary inquiry assesses whether the matter, on the balance of probabilities, did occur. If after a preliminary inquiry into the matter the allegations are assessed as not meeting the required standard of proof, the complainant will be advised and, unless further information is forthcoming, the complaint will be closed. If this standard of proof is met and possible disciplinary action is required then the matter should be referred. In the case of employees such referral should be to ERMS within Human Resources for investigation as a possible misconduct or serious misconduct matter under the relevant Staff Agreement. Student matters should be referred to the Registrar for investigation under Statute 17 and/or the attendant Regulations specific to students.

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

A preliminary inquiry should be conducted in accordance with the record keeping and confidentiality processes outlined in this policy (see below). Responses to concerned parties should be provided in a timely manner.

5. Liaise with Appropriate Area with Expertise

The Manager/Supervisor managing the case will liaise with ERMS, Equity and Diversity, Complaints Manager, Student Services, the Guild of Undergraduates or other relevant area of expertise to obtain information concerning the next stage. If disciplinary action is required, the matter should be referred to ERMS in the case of an employee, or to the Registrar 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.

6. Investigation

If the preliminary inquiry determines that an allegation of sexual harassment is of sufficient substance to warrant an investigation, the case manager will follow the misconduct or serious misconduct processes for employees as set out in the relevant Staff Agreement (www.hr.uwa.edu.au/page/95944) and refer the matter to ERMS within Human Resources for investigation. When the allegations are about the behaviour of a student the case manager will follow the misconduct processes as set out in University Statute 17 and the Regulations made pursuant to that Statute.

11 Confidentiality and Privacy

Employees involved in investigations of sexual harassment are obliged to ensure confidentiality and privacy in so far as is possible to address or resolve the complaint. Complainants and respondents will be strongly advised at all stages of the internal procedure to maintain confidentiality and to discuss the complaint only with those who have an official responsibility for dealing with the matter and specific individuals who may be supporting them through the process.

Exceptions: Employees are obliged to disclose information relating to sexual harassment allegations or investigations where:

  • there has been or is an imminent physical threat of danger to a person;
  • when the matter triggers the University's reporting obligations under State or Commonwealth legislation, including the Freedom of Information Act and the Corruption and Crime Commission Act.

Notes concerning Records Management

Brief and accurate details of allegations of Bullying and any subsequent investigations of these should be recorded by Case Managers in keeping with the University's Records Management Policy (see http://www.universitypolicies.uwa.edu.au/search?method=document&id=UP07%2F157)

12 Conflict of Interest

No person 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.

A conflict of interest includes any circumstance, whether actual or perceived, arising from conflict between the performance of public duty and private or personal 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; and
  • they adhere to the University's Code of Ethics and Code of Conduct (Section 3.11) http://www.hr.uwa.edu.au/publications/code_of_ethics

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 (e.g. ERMS, Equity).

Procedure

In employment relationships, a perception of a conflict of interest may be seen to exist where it would be likely that a person might reasonably fear that a more senior staff member managing their allegations might be influenced by factors other than employment management considerations. 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 one's Manager or from the Associate Director, Equity and Diversity before proceeding further with the matter.

13 Victimisation

Unfavourable treatment of complainants, respondents, or witnesses and support people as a consequence of their actual or intended participation in a complaint inquiry, investigation or resolution process may constitute victimisation and is unlawful. Victimisation occurs when a person is subjected to, or is threatened with a detriment because they have made a complaint, or been involved in a complaint procedure, or it is believed they intend to lodge a complaint or become involved in a complaint procedure. Unfavourable treatment includes, but is not limited to, adverse changes to a work or study environment, denial of access to resources, work opportunities or training, or ostracism or exclusion by others.

Complaints of victimisation related to a sexual harassment complaint will be dealt with as misconduct and may, if substantiated, result in disciplinary action under the terms of the relevant Staff Agreement ( http://www.hr.uwa.edu.au/hr/erms/collective_workplace_agreementswww.hr.uwa.edu.au/page/95944) and, for students, Statute 17 and the regulations pursuant to that Statute.

14 Vexatious Complaints

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 Staff Agreement (www.hr.uwa.edu.au/page/95944). In the case of a vexatious complaint made by a student, UWA Statute No. 17 and the Regulations made pursuant to that Statute apply ( http://calendar.publishing.uwa.edu.au/latest/partc/stat17)

Related forms: (Link)

TRIM File No:

F39560

Contact position:

Associate Director, Equity & Diversity

Related Policies or legislation:

The University's Code of Ethics and Code of Conduct-Section 3.11

Academic Staff Agreement

Professional & General Staff Agreement

UWA Child Care Employees' Agreement 2009

UWA ELICOS Teachers Agreement 2011

University Statute 17

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

WA Equal Opportunity Act (1984)

Sex Discrimination Act (1984)

Fair Work Act (2009)

WA Corruption and Crime Commission Act

WA Occupational Health and Safety Act 1984

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