1.5.3 Sexual Harassment
1.5.3.1 Policy
The Department of the Premier and Cabinet is committed to the prevention of sexual harassment in the workplace. Sexual harassment in the workplace will not be tolerated and will be dealt with seriously.
The Department of the Premier and Cabinet has a policy for preventing and resolving sexual harassment in the workplace that applies to all employees of the Department of the Premier and Cabinet which includes staff employed in ministerial offices.
1.5.3.2 Definitions
Sexual harassment is defined in the Anti-Discrimination Act 1991 as happening when a person: -
- subjects another person to an unsolicited act of physical intimacy (e.g. physical contact such as patting, pinching or touching in a sexual way or other unnecessary familiarity such as deliberately brushing against a person); or
- makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person (e.g. sexual propositions); or
- makes a remark with sexual connotations relating to the other person (e.g. unwelcome or uncalled for remarks or insinuations about a person's sex or private life or suggestive comments about a person's appearance or body); or
- engages in any other unwelcome conduct of a sexual nature in relation to the other person (e.g. offensive phone calls, e-mails, screen savers, indecent exposure or stalking);
and the person engaging in the conduct described above does so:
- with the intention of offending, humiliating or intimidating the other person; or
- in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by this conduct.
1.5.3.3 Harassment Referral officers
Ministerial Services has acces to Harassment Referral Officers (HROs) whose role is to:
- provide confidential advice and support to complainants subjected to sexual harassment;
- advise staff about the nature of sexual harassment, its effects and complaint resolution mechanisms.
1.5.3.4 Vicarious liability
Vicarious liability is a legal doctrine, which holds a person or organisation responsible for the wrongful actions of another. It means that employers are legally responsible for the discriminatory acts of their employees.
Section 133 of the Anti-Discrimination Act 1991 provides that if an employer's workers or agents contravene the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally liable for the contravention, and a proceeding under the Act may be taken against either or both.
An employer's defence is that it took reasonable steps to prevent harassment. It is no defence for the employer to say that they did not know the harassment was occurring.
1.5.3.5 Responsibility of Ministerial Services
Ministerial Services is responsible for facilitating the implementation of the Department's policy. This responsibility includes:
- dealing with complaints promptly and seriously;
- disseminating information and providing training to staff with the aim of preventing incidents of sexual harassment.
The objective of the following information is to outline the responsibilities of Ministers and ministerial staff, the role of the unions and the procedures for the resolution of complaints.
1.5.3.6 Responsibility of Ministers and staff
All staff have a responsibility to ensure that sexual harassment does not occur in the workplace.
Ministers and senior Ministerial staff have the responsibility to:
- clarify and set standards of appropriate workplace behaviour;
- monitor the work environment for inappropriate behaviour;
- address inappropriate behaviour;
- be conversant with the policy on sexual harassment;
- ensure all complaints of sexual harassment are treated seriously, confidentially and expeditiously;
- monitor the workplace and ensure that all staff fulfil their responsibilities in relation to this policy;
- ensure the relevant parties are not victimised; and
- act as role models for other staff.
1.5.3.7 Role of the unions
An employee is entitled to contact their union at any time in regard to sexual harassment matters. This is true for both employees who report harassment and those employees who have complaints made against them. It is not the role of managers and supervisors to contact the union on behalf of a staff member.
Unions are available to provide support and advice to their members and may act on their behalf in respect of complaints of sexual harassment at any stage.
1.5.3.8 Procedures for resolution
There are two paths for the resolution of sexual harassment - an internal path and an external path.
1.5.3.9 Internal resolution
A number of options exist under the internal path including an Informal Process or a Formal Process. These options are detailed below. A flowchart outlining the process for resolving workplace behaviour issues is provided at Appendix 22.
1.5.3.10 The Informal process
The use of informal measures to resolve harassment promote a range of benefits including:
- the least organisational disruption with the individuals concerned continuing to work together;
- allowing the individuals concerned to take positive action to resolve the situation;
- focusing on improving future working relationships by clarifying what is regarded as acceptable behaviour for staff and;
- to safeguard against the escalation of the matter.
This informal process may be initiated by the individual complainant or following a discussion of the situation with a manager or supervisor, a union or the HRO. Responsibility and control is taken by the individual.
To assist in identifying which informal option a complainant should pursue, they should work out what outcomes they seek and choose the option that is most likely to produce the desired outcome.
It may be helpful at this stage to discuss options with the HRO.
The options for the complainant are as follows:
- Speaking to the person directly
- Requesting the assistance of the manager/supervisor
- Mediation
- Seeking assistance from the HRO or Ministerial Services.
These options are outlined in more detail below:-
Speaking to the person directly:
This option involves the complainant advising the alleged harasser that they find their behaviour offensive. The complainant needs to be specific about the behaviour that has given offence so that no doubt is left in the other person's mind as to what is being objected to and how to avoid offending again. The complainant may also wish to point out that the behaviour may be unlawful under the Anti-Discrimination Act 1991.
If staff elect to deal with the matter themselves, they should ensure that the communication to the alleged harasser is not overheard or intercepted by any other parties.
If this option is pursued, the complainant and the alleged harasser should deal with the matter in strict confidence and with respect for each other's rights.
Care should be taken not to place either party in a threatening or intimidating situation or to embarrass or humiliate the alleged harasser by making a public accusation.
Equally, the alleged harasser should not respond to the complainant in a way, which may humiliate, intimidate or embarrass them. Victimisation of the complainant is also an offence under the Anti-Discrimination Act 1991.
Requesting the assistance of the manager/supervisor
The complainant may request the assistance of their manager/supervisor in resolving the complaint. As part of the informal process the manager/supervisor should attempt to resolve the matter at the local level. The manager/supervisor would need to talk frankly and honestly about the complaint with the alleged harasser.
When assisting in the informal process, the manager should seek to achieve a resolution between the parties, whereby there is agreement about what constitutes appropriate behaviour in the workplace and that any inappropriate behaviour, which has occurred in the past, will cease.
The manager/supervisor who resolves a situation locally should be aware of the need to monitor the workplace following the incident to ensure that workplace behaviour is appropriate and that the complainant is not being victimised.
Participating in mediation
Mediation between a complainant and the individual causing offence is an effective way of dealing with complaints informally and confidentially. Independent mediation can be arranged through Ministerial Services.
Requesting the assistance of the Harassment Referral Officer
Complainants can seek assistance from a Harassment Referral Officer (HRO) who is available to listen, provide support and advise about complaint resolution options.
HROs are also available to provide advice to manager/supervisors on the general issues involved in a complaint of sexual harassment and complaint resolution options.
The HRO's role is an advisory one only and HROs will not investigate or attempt to resolve complaints of sexual harassment. The obligation and authority for resolving complaints remains with management.
1.5.3.11 The formal process
Formal mechanisms may be appropriate where informal measures fail, the nature of the situation requires a more formal approach or the complainant chooses not to resolve the matter informally.
It is generally recommended that every effort be made to resolve the complaint within the Office. Failing this, or where this is not a viable course of action it is appropriate to refer the matter to the Director-General, Department of the Premier and Cabinet who is legally responsible for ensuring adherence to the provisions of the anti-discrimination legislation as it relates to ministerial staff.
The following two step process has been established to deal with formal complaints of sexual harassment relating to Ministerial staff. All stages of this process will be dealt with in a completely confidential manner and only those with a genuine need to know will be given any information about an individual enquiry. The complainant may involve the union at any stage of this process and where it is appropriate may move straight to Step 2 of the process.
Step 1
The employee informs the Principal Advisor verbally or in writing of the existence of the complaint. If the Principal Advisor is the alleged offender or appears to condone the behaviour, the employee should take the complaint to the Minister or lodge it directly with the Director-General, Department of the Premier and Cabinet. This may also be appropriate where the complainant has reason to prefer to lodge their complaint directly with the Director-General e.g. where there is fear of repercussions within the Office or where the alleged offender is employed in another Minister's office.
The Principal Advisor or other person approached in relation to the complaint should inform the Minister. The Minister determines whether or not he/she wishes to attempt to resolve the matter. The person responsible for resolving the matter must attempt to do so within 10 calendar days. If the matter remains unresolved after 10 calendar days, the parties to the complaint will be provided with information about the status of the complaint and the planned finalisation date.
If the matter remains unresolved after 21 calendar days of advising the Principal Advisor, the complainant may proceed to Step 2 unless otherwise agreed between the employee and the Principal Advisor.
Step 2
If the complaint is not resolved at Step 1, the complainant may submit the complaint in writing to the Director-General, Department of the Premier and Cabinet.
As with Step 1, if the complaint remains unresolved after 10 calendar days, the parties to the complaint must be provided with information about the status of the complaint and the proposed finalisation date.
The Director-General will ensure that the complainant has the opportunity to present all aspects of the complaint and that the grievance is investigated in a thorough, fair and impartial manner within 21 calendar days, unless otherwise negotiated. Union representation is also permitted at this level.
Following receipt of the investigating officer's report, the Director- General will make the final decision on any action to be taken and will advise the complainant and the alleged offender accordingly.
Where Step 2 remains unfinalised, and/or the complainant remains aggrieved after 21 days, he or she may make a fair treatment appeal to the Public Service Commissioner. For details on this appeal process contact Ministerial Services or a referral officer.
1.5.3.12 External resolution
External options available to Ministerial staff are:
- Anti-Discrimination Commission (Queensland);
- Queensland Police Service; or the
- Crime and Misconduct Commission.
Anti-Discrimination Commission (Queensland)
Staff may seek advice from the Anti-Discrimination Commission (Queensland) at any stage, about making a complaint under the Anti-Discrimination Act 1991.
If an employee wishes to make a complaint to the Commission, it will need to be put in writing before action can be taken. Commission staff will advise complainants if their grievance falls within its jurisdiction and if so, how the Commission may be able to assist.
Complaints are investigated and settled primarily through conciliation. Conciliation is a way of settling conflict by bringing the disputing parties together to reach a voluntary agreement that suits everyone involved.
The disputing parties are helped in this by a conciliator who is an officer of the Commission. Conciliators are neutral parties and everything discussed with a conciliator is confidential. There is no charge for having a complaint investigated and conciliated. If the parties cannot settle the matter through conciliation, the complaint may be referred for hearing to the Anti-Discrimination Tribunal.
Police/Crime and Misconduct Commission
Complainants may take serious assaults involving criminal conduct to the police for investigation. Individuals may also complain to the Complaints Section of the Crime and Misconduct Commission about sexual harassment where the behaviour is perceived to be official misconduct.
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