Someone says I sexually harassed them...
- What happens now?
- What is 'sexual harassment'?
- Why does the University have sexual harassment procedures?
- How do I know that I will be treated fairly?
- What should I know about sexual harassment?
- When is sexual harassment a criminal offence?
- What happens if the alleged behaviour falls outside the definition of sexual harassment?
- What should I know about issues of confidentiality and defamation?
- What should I know about the University's sexual harassment policy and procedures?
- Stage 1: Advising
- Stage 2: Conciliation
- Stage 3: Investigation and Determination
- Notes
What happens now?
If a concern has been raised about your alleged behaviour you are entitled to information about:
- how sexual harassment is defined in the University's sexual harassment policy and procedures;
- how concerns about sexual harassment are addressed within the University and outside it; and
- what it is that you are said to have done.
The University has developed procedures to address concerns that are raised about sexual harassment informally, and process formal complaints of sexual harassment. 'Someone says I sexually harassed them' has been designed to provide you with information about the University's informal and formal sexual harassment procedures when a concern about your alleged behaviour has been raised.
What is 'sexual harassment'?
The term 'sexual harassment' is used to refer to unwelcome behaviour or conduct of a sexual nature, which makes another person feel offended, humiliated or intimidated.
A wide range of behaviours can constitute sexual harassment.
For example, if you either intentionally or unintentionally:
- subject someone to unwanted physical contact or gestures;
- ask intrusive questions, or subject someone to insinuations about their private life;
- make jokes or insinuations of a sexual nature;
- subject someone to sex-based insults or taunts;
- make persistent unwanted invitations of a personal nature;
- explicitly or implicitly demand someone to engage in sexual activity;
- display offensive or pornographic material such as posters, pin-ups, cartoons, graffiti, screen savers or calendars; or
- send an offensive communication of a sexual nature by means of a note, letter, telephone, computer, or by electronic mail or any other means;
IN circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or uncomfortable, THEN that behaviour constitutes sexual harassment.
Why does the University have sexual harassment procedures?
Staff and students at the University have a right to study and work in an environment that is free from sexual harassment.
If someone thinks that they have been sexually harassed in circumstances where that harassment:
- affects their selection into a course, their admission to the University, or their recruitment by the University; or
- affects their academic assessment, a condition of their appointment, or their promotion or salary; or
- either aims to interfere with, or actually interferes with, their academic or work performance; or
- creates an intimidating, hostile or offensive learning or working environment
the University has a legal obligation to provide them with an opportunity to raise and resolve their concern.
How do I know that I will be treated fairly?
Clear policies and guidelines have been developed to ensure that people who have allegations of sexual harassment made against them in informal or formal contexts are treated in accordance with the principles of 'natural justice' or procedural fairness. The University's sexual harassment procedures emphasise your right to:
- receive advice about the University's sexual harassment policy and procedures;
- understand what has been said about you and be provided with an opportunity to respond;
- ensure that official University records that could disclose your identity and connect you with unsubstantiated allegations are not made or kept;
- have (or request) a fair hearing that involves an investigation and determination of the issues; and
- receive on-going advice, support and referral information
throughout all stages of each process in which you might become involved.
What should I know about sexual harassment?
It is important to realise that:
- sexual harassment can be unintentional;
- behaviour that affects a group of people can be sexual harassment: sexual harassment can involve more that two people; and
- someone with whom you have been intimate, or with whom you had an on-going relationship is still entitled to raise a concern about your conduct.
If behaviour that is sexual in nature is unwelcome, uninvited and non-consensual at the time that it occurs it is sexual harassment.
Even mild forms of sexual harassment can make people feel uncomfortable and infringe upon their work and learning. This is particularly true if the person who is engaging in unwanted conduct of a sexual nature has authority over the person who is being subjected to the conduct.
Whether a concern has been raised about your alleged behaviour by:
- someone of equal status (for example, if you are an employee and the person who raised the concern is a colleague at a similar level in the University); or
- someone over whom you have authority (for example, if you are a Lecturer and the concern has been raised by a student); or
- someone who has authority over you (for example if you are a student and the concern was raised by your lecturer or if you are an employee and the concern was raised by someone in a more senior position);
internal University procedures could be implemented to address the issue fairly and effectively.
When is sexual harassment a criminal offence?
It is against the law to sexually harass another person or to create a sexually hostile work and learning environment. State and Federal equal opportunity laws prohibit it.
However, some forms of harassment that breach equal opportunity laws are also crimes. Examples of these forms of harassment include:
- sexual assault;
- physical molestation or assault;
- indecent exposure;
- stalking; and
- obscene communications (such as telephone calls and letters).
Allegations about the types of behaviour listed above could become police matters.
Even if the harassment involves criminal behaviour, the University may still deal with it using the sexual harassment or other procedures.
What happens if the alleged behaviour falls outside the definition of sexual harassment?
Whether or not your alleged behaviour can be characterised as sexual harassment depends upon whether it was wanted or unwanted. Behaviour to which someone freely consents is not sexual harassment. Friendship and consensual expressions of mutual attraction and respect are not sexual harassment.
If someone raises a concern about behaviour that you thought was wanted or acceptable you need to consider the possibility that there has been a misunderstanding between you. It is possible that you sexually harassed them without meaning to.
You should also be aware that behaviour falling outside the definition of sexual harassment that is:
- wanted or accepted by another person; or
- not sexual in nature
can still be inappropriate in the context of the work and learning environment and be subject to action under the University's procedures for dealing with serious misconduct or misconduct.
Bullying, discrimination on grounds other than sex, and staff/student relationships that could cause conflicts of interest are addressed under other University policies. If what you are alleged to have said or done would breach another University policy then the issue may be addressed under that policy instead.
What should I know about issues of confidentiality and defamation?
Is an allegation of sexual harassment defamatory?
Defamation laws aim to protect people's reputations from being unfairly damaged in the public domain. However, it is not defamatory for the person who thinks they were harassed to speak to you directly or write you a letter expressing their concern about your behaviour. Private communications of that kind are not damaging to your reputation.
Similarly, if an allegation of sexual harassment is made in good faith through the appropriate channels it is unlikely to be defamatory. As long as the concern is raised with the appropriate people in the University, the law will provide the person who thinks they have been harassed with some protection from defamation suits.
Allegations that are untrue, motivated by ill will or malice, or inappropriately broadcast to people who have no legitimate interest in knowing about them may breach defamation laws. From the outset, the University strongly encourages all parties involved in a concern about sexual harassment to maintain strict confidentiality about the matter.
The University's sexual harassment procedures recognise that the untested allegations of sexual harassment that are raised remain completely confidential. They aim to protect your identity and strictly limit knowledge of the issue to those people who have a legitimate role to play in resolving the issue according the University's procedures.
Are counter allegations defamatory?
Just as the law aims to prevent another person from damaging your reputation, it also aims to prevent you from damaging the reputation of another person. It is not defamatory for either you or the other party to tell your side of the story to a Sexual Harassment Adviser or a confidential counselling service, for example. However, you could breach defamation laws if you make untrue or malicious statements about the other person to people who have no legitimate need to know about the issue.
Both you and the other party need to be careful what you say about each other, and to whom.
I'm a member of staff. Will my name appear on the University's central files in connection with a concern about sexual harassment?
Unless the matter is ultimately referred to a formal Stage 3: Investigation and Determination procedure nothing that relates to the resolution of a sexual harassment issue will appear on your personal file in Central Administration.Any University records of informal procedures, such as receiving advice from a Sexual Harassment Adviser or participating in conciliation, will not contain your name.
If the person who raised the concern goes to see a Sexual Harassment Adviser, that Adviser may take some brief notes outlining the nature of the concern and the names of the people involved. These notes are secured in locked files and are only accessed by the relevant Sexual Harassment Adviser or Senior Sexual Harassment Adviser, or in some circumstances, by staff of the Equal Opportunity Unit who are involved in the resolution of the issue. They are the Adviser's own working notes only and are not part of official University records.
What should I know about the University's sexual harassment policy and procedures?
The University has procedures to deal with instances of sexual harassment. Those procedures involve three separate stages. The stages are:
- Stage 1: Advising;
- Stage 2: Conciliation;
- Stage 3: Investigation and Determination.
The stages are usually sequential. Stages 1 and 2 are both informal procedures. Stage 1 always precedes Stage 2. In most cases, Stage 2 will also occur before Stage 3 (which involves making a formal complaint, is implemented).
Each stage might be sufficient to resolve the issue. In implementing these procedures the University aims to ensure that:
- you have adequate information with which to make decisions;
- you understand the process and the roles of the respective parties;
- you understand the possible outcomes of the processes;
- support, and referrals for support, are made available to you; and
- your right to 'natural justice' and procedural fairness is respected by all parties at all stages throughout the process.
Stage 1: Advising
Who are the Advisers and what do they do?
A number of trained Sexual Harassment Advisers are available to provide you with information about the University's policies and procedures on sexual harassment. Advisers can also provide you with referral information where appropriate.
In your initial meeting the Adviser will:
- help clarify whether what allegedly occurred is defined as sexual harassment under the University's policy;
- help clarify your view of the situation;
- explain the 'Stage 2: Conciliation' and 'Stage 3: Investigation and Determination' procedures under the University's sexual harassment policy;
- explain the confidentiality provisions of the procedures;
- refer you to appropriate services for information, support and assistance.
The same Adviser never advises both parties in a concern about sexual harassment.
Who else can I see?
Members of Staff and University bodies such as Faculty Officers, Student Services and Human Resources should all be able to assist you with obtaining information about the University's sexual harassment policy and procedures. You should also be able to obtain such information from persons and organisations located on campus who represent students or staff, such as:
- the Association of Women on Campus of the University of Melbourne ('AWCUM');
- the Melbourne University Student Union Incorporated ('MUSUI'); and
- the University of Melbourne Postgraduate Students' Association ('UMPA').
In addition you may wish to consult an alternative body for further information, ie. a trade union of your choice.
Stage 2: Conciliation
What is 'Stage 2: Conciliation' according to the University's sexual harassment policy and procedures?
Stage 2 Conciliation is an informal process in which a neutral third party provides the person who thinks they have been sexually harassed and the alleged harasser with an opportunity to resolve their concerns. It provides parties who wish to pursue the matter with an alternative to a more formal procedure, such as a Stage 3: Investigation and Determination or legal action.
Conciliation cannot occur unless both parties agree to participate in it voluntarily.
It is an informal procedure and does not involve an investigation or assessment about who is 'right' and who is 'wrong'. Instead it allows both parties to express their views and for an agreement to be mutually negotiated and drawn up by the Conciliator. Information that is disclosed during the conciliation process is confidential and must not be used by either party in other contexts.
The person who thinks they were sexually harassed can request that conciliation occur by:
- the Conciliator meeting with you and the other person separately as many times as is necessary to resolve the concern; or
- the Conciliator meeting with both of you together.
Conciliation usually occurs at the request of the person who thinks they were harassed.
What are the aims of Stage 2 Conciliation?
The aims of Stage 2: Conciliation are to:
- give both parties an opportunity to resolve the concern informally;
- ensure that there are no reprisals for raising the concern and no retribution for the alleged harassment;
- make arrangements to address any disadvantage that may have occurred because of sexual harassment;
- negotiate an agreement about whether the parties will have any future contact (and if so, how they will conduct themselves); and
- inform both parties of the consequences of any further instances of harassment or other problematic behaviour.
Is agreeing to participate in Stage 2: Conciliation the same as saying that I intentionally sexually harassed someone?
No. The University recognises that you can sexually harass someone without meaning to do so. It also understands that you may choose to attempt to resolve an issue through Stage 2: Conciliation even if you do not agree with aspects of the concern that has been raised about your behaviour, or some of the substance of what it is you are said to have done.
Who can conciliate sexual harassment matters?
Only people who the University has authorised to do so can conciliate cases of alleged sexual harassment. Other people have no authority to resolve the issue and are not legally indemnified. The majority of the University's Sexual Harassment Advisers are also trained in conciliation. However, Advisers are not permitted to act as Advisers and Conciliators on the same case.
Another appropriately trained or qualified person may also be appointed by the Equal Opportunity Coordinator to conciliate a case of alleged sexual harassment.
What should I know about the letter that I received asking me to participate in conciliation?
The Conciliator will contact you and give you a letter. The letter aims to ensure procedural fairness in Stage 2: Conciliation by providing you with:
- a brief summary of the concern that has been raised about your alleged behaviour; and
- information about the conciliation process.
A standard Letter of Notification is produced by the Equal Opportunity Unit and adapted by the Conciliator. It should inform you that:
- conciliation is a confidential process; and
- any statements made or information disclosed during conciliation are 'without prejudice' and cannot later be used as evidence or referred to in a formal Stage 3: Investigation and Determination or in legal proceedings.
It also:
- explains where you can obtain copies of the sexual harassment policy and procedures;
- outlines the possible consequences of conciliating or choosing not to conciliate;
- invites you to write a short statement of response as part of the conciliation process;
- provides the names of Sexual Harassment Advisers that you can contact for information, support and referral information; and
- sets a timeframe in which the decision about whether or not to participate must be made.
This information helps you to:
- understand what you are said to have done;
- decide whether or not to participate in conciliation; and
- consider whether you wish to request the Vice-Chancellor to formally investigate the concern.
The Letter of Notification is not a detailed document. This is because Stage 2: Conciliation is an informal procedure. It is about resolving the issue. It is not about testing evidence or proving who is right or wrong.
In contrast, if a matter goes to Stage 3: Investigation and Determination, you will receive a detailed written account of the complaint and the opportunity to formulate a written response to it. Stage 3 is a formal procedure. It involves the investigation of a formal complaint and an imposed outcome.
What role will the Adviser play?
The Sexual Harassment Adviser and the Conciliator have separate roles. This allows your Adviser to provide you with information and to ensure that you receive appropriate support. You can seek advice from your Adviser throughout the conciliation process. Your Adviser will not be involved in contacting the person who raised the concern, nor in negotiating with them to resolve the issue.
Will the Conciliator be even-handed and unbiased?
Yes. The Conciliator's role is that of neutral third party. His or her goal as a Conciliator is to resolve the issue to both parties' satisfaction, not to take sides.
What happens when an agreement is negotiated through Stage 2: Conciliation?
Agreement can be made verbally in the first instance, but the terms of the agreement do need to be written down and signed by both parties as soon as possible.
Although you and the person who raised the concern have some discretion about what you include in the agreement, it must contain:
- a guarantee that no further offending behaviour will occur;
- an acknowledgment of your awareness that reprisals for having raised the concern, or retribution for the alleged harassment, will not be tolerated;
- a statement as to whether or not you will have any further contact with each other and if so, how you will behave;
- an agreed procedure for monitoring the situation and resolving any future concerns so that each of you feels supported and protected; and
- an explanation that the same matter cannot be conciliated again by the University in the event that the agreement is breached and that more formal procedures may need to be implemented if the agreement is breached.
You may each keep a copy of the agreement.
A copy of the agreement that does not include your name will be retained on file by either Equal Opportunity Unit or the Senior Sexual Harassment Adviser as a means of monitoring the number of conciliation procedures and their outcome. (If the person who raised the concern does not wish their name to be recorded on the copy of the agreement that is retained for this purpose they may ask that their name be removed.)
What happens when conciliation occurs but no agreement can be reached?
If no mutually satisfactory agreement is reached at conciliation, the Conciliator will inform your Adviser of the outcome of the conciliation. The Adviser who has been providing you with information and support can continue to assist you. She or he will explain other options that are available to the other party if they wish to pursue the matter using internal or external procedures, and of your own rights and options.
What if I am not willing to participate in Stage 2: Conciliation?
See a Sexual Harassment Adviser for advice and information to ensure that you are making an informed choice in refusing the offer of conciliation. You need to be aware that if you refuse conciliation the other party may still pursue the matter by:
- requesting the Vice-Chancellor to implement a Stage 3: Investigation and Determination; or
- lodging a legal complaint with either the Victorian Equal Opportunity Commission or the Federal Human Rights and Equal Opportunity Commission.
Stage 3: Investigation and Determination
What is 'Stage 3' Investigation and Determination'?
Stage 3 Investigation and Determination is a formal procedure. It involves:
- making a formal complaint;
- investigating the complaint to see whether it can be substantiated; and
- an imposed outcome.
Stage 3 can be implemented at your request or at the request of the person who raised the concern if Stage 2: Conciliation did not achieve a mutually negotiated agreement, or if conciliation would be impossible or inappropriate in the circumstances.
If you proceed to Stage 3 you may notice a change in the language used to describe the parties involved in the complaint. That is, you will be referred to as 'the Respondent', the person who raised the concern will be referred to as 'the Complainant' and the concern that they raised will be referred to as 'the complaint'.
As part of the process, you will be provided with a detailed written account of the allegations that have been made against you, and be given an opportunity to respond to those allegations in full.
Can I ask the Vice-Chancellor to investigate and determine the issue that has been raised concerning my alleged behaviour?
Yes, although usually if a sexual harassment matter progresses to Stage 3 it is at the request of the person who is has allegedly been harassed. However, the University recognises that there may be occasions when someone in your position may want a formal investigation to occur so that evidence can be tested and a formal determination can be made.
If you:
- are not willing to cooperate with the Conciliator and participate in the conciliation process; or
- wish to deny the allegation; or
- have participated in conciliation but no agreement was reached
you may inform the Equal Opportunity Coordinator that you wish to request that the Vice-Chancellor initiate a Stage 3: Investigation and Determination procedure.
If conciliation has not occurred the Equal Opportunity Coordinator must consult with the other party's Adviser and the Senior Sexual Harassment Adviser, and consider the request to by-pass Stage 2. If the Equal Opportunity Coordinator agrees that it would be appropriate to implement Stage 3 without attempting conciliation, she or he will notify the Vice-Chancellor of this fact in writing and request that the matter proceed.
How may the Vice-Chancellor investigate and determine the complaint?
On receiving a request to investigate or determine a complaint the Vice-Chancellor must take one or more of the following actions:
- seek advice from the Senior Sexual Harassment Adviser in conjunction with the Equal Opportunity Coordinator, the Director of Legal Services or any other source he or she determines to be appropriate;
- if relevant and appropriate, refer you to the Stage 1 or Stage 2 procedures;
- decline to investigate the complaint if it is frivolous, vexatious, misconceived or lacking in substance;
- initiate an Investigation;
- either before, during or after an Investigation, if the Respondent is a student, refer the complaint to be dealt with under the Student Discipline Statute;
- either before, during or after an Investigation, if the Respondent is a member of staff, refer the complaint to be dealt with under the serious misconduct or misconduct procedures, or other University procedures.
What are the possible outcomes of Stage 3?
As a result of the investigation and determination that occurs at Stage 3, the Vice-Chancellor will determine whether or not the complaint of sexual harassment has been substantiated.
If the Vice-Chancellor finds that the complaint is founded he or she may refer the matter to be dealt with under the University's procedures for dealing with serious misconduct or misconduct or other procedures.
The Vice-Chancellor may also inform the Respondent that sexual harassment or victimisation of someone making a complaint of sexual harassment is a breach of the:
- sexual harassment policy;
- serious misconduct or misconduct procedures;
- contract of employment (if the Respondent is a member of staff;
- Student Discipline Statute (if the Respondent is a student).
The Vice-Chancellor may also take steps to address any loss or disadvantaged suffered by the Complainant. This may include:
- ensuring as far as possible that they are not disadvantaged due to having made the complaint, and that they do not suffer reprisals of any kind from any person;
- restoring them, as far as practicable, to the position that they were in before the harassment occurred;
- as far as practicable, making good any loss or damage that they may have suffered as a consequence of the harassment.
It is also open to the Vice-Chancellor to find that the complaint is unsubstantiated, in the sense that it is `misconceived', if it is made in relation to behaviour that:
- occurred but was not sexual harassment (for example, because it was not sexual in nature); or
- could be better addressed under another University policy (for example, the policy on staff/student relationships).
Will I be 'punished' if the complaint is substantiated?
If the matter is referred to the University's serious misconduct or misconduct procedures, this may lead to disciplinary action being taken which is appropriate to the seriousness of the offence.
The Vice-Chancellor may also take other steps to prevent further harassment in the future.
Can I ask for a review of the outcomes of the Stage 3: Investigation and Determination?
Yes. Both you and the Complainant may write to the Vice-Chancellor to request a review on the ground that during the University failed to follow the Stage 3: Investigation and Determination procedures. The request must be forwarded to the Vice-Chancellor within seven working days upon receiving written notice of the outcome of the Stage 3 procedures.
The Vice-Chancellor must nominate an independent senior member of staff to conduct the review and provide a report.
Could the person who raised the concern be 'punished' for making a formal complaint if that complaint is unsubstantiated?
The person who raised the concern cannot be punished for making a formal complaint of sexual harassment if the complaint is made in good faith under the University's policy and procedures.
Will I need legal representation?
You are at all times entitled to seek legal advice in relation to the allegation of sexual harassment that has been made against you. However, practising barristers and solicitors may not attend any of the University's proceedings.
The University's informal and more formal procedures for dealing with complaints of sexual harassment are internal procedures. The aim of the procedures is to achieve a satisfactory resolution of the issue as simply and effectively as possible.
What if the person wants to take legal action against me outside the University?
The other party may seek to take legal action about your alleged sexual harassment, under the:
- Victorian Equal Opportunity Act 1995;
- Federal Sex Discrimination Act 1984;
- Federal Human Rights and Equal Opportunity Act 1986.
If a legal complaint is lodged against you with the Victorian Equal Opportunity Commission or the Federal Human Rights and Equal Opportunity Commission, the University's internal procedures may be suspended or terminated pending the outcome of the complaint.
If you would like more information about what happens in this situation you can contact a Sexual Harassment Adviser or staff at the Equal Opportunity Unit.
Notes
- The use and misuse of University technology is governed by Statute 8.1. It is relevant to sexual harassment that occurs through the use of computers and e-mail, and is located at the following internet address: http://www.unimelb.edu.au/ExecServ/Statutes/r81r7.pdf.
- In this situation the concern may be resolved between you and the other person without the assistance of the University. However, either you or the other person would be entitled to ask that the University assist you to negotiate an agreement through conciliation.
- In the event that you wish to request a Stage 2: Conciliation because someone has written you a letter or spoken to you about your alleged behaviour and you wish to resolve the issue, you are entitled to do so. The person who thinks they were harassed has the right to accept or refuse the offer of conciliation.
- If other means of delivery are necessary, consideration will be given to how the letter can be delivered to you as quickly and confidentially as possible.
- You may choose to make this request if, for example, you consider the concern that has been raised about your behaviour is frivolous, malicious, vexatious or lacking in substance, and believe that a formal investigation and determination procedure will demonstrate this.