Unacceptable BehaviourPart 5

Table of contents

• 5.1 Bullying
• 5.2 Violence
• 5.3 Sexual harassment and assault
• 5.4 Discrimination
• 5.5 Harassment and vilification
• 5.6 Harm to children and child abuse
• 5.7 Improper conduct
   

5.1. Bullying

The University is committed to providing an environment for work and study that is free from bullying.

Bullying is characterised by repeated, unreasonable behaviour directed at an employee or student, or group of employees or students, that creates a risk to health and safety. Bullying behaviour is that which a reasonable person in the circumstances would expect to victimise, humiliate, undermine, threaten, degrade, offend or intimidate a person. The behaviour can include actions of an individual or a group, and may involve the bully using a system of work or inappropriately asserting power.

Whilst generally characterised by repeated behaviours, one-off instances can amount to bullying.

Adverse action or reprisal should not be taken against a person who raises a bullying issue or concern. Bullying, and adverse action or reprisal in response to a bullying complaint or concern, are unacceptable and may lead to disciplinary action.

Responsible staff have a duty of care that includes taking all reasonable steps to prevent bullying and appropriately managing bullying complaints.

It is important to understand that:

• reasonable management decisions, discussions or actions, including performance counselling and managing underperformance
• instructions, directions and requirements that are made fairly and appropriately
• differences of opinion, conflicts and working relationship issues

are part of the challenges of working life and do not constitute bullying.

5.2. Violence

The University is committed to providing an environment for work and study that is free from violence.

Violence is a physical assault or attack by direct or indirect application of force that creates a risk to health and safety. The attacker’s intent is not determinative.

The University does not accept violence, threats or abuse under any circumstances and encourages the early reporting of any such incidents, with offenders subject to disciplinary action and criminal proceedings.

5.3. Sexual harassment and assault

The University is committed to providing an environment for work and study that is free from sexual harassment.

Sexual assault occurs when a person is forced, coerced or tricked into sexual acts against their will or without their consent. The term can refer to a broad range of sexual behaviours that make a victim/survivor feel uncomfortable, frightened or threatened. Sexual assault is a crime and includes rape, sexual touching and child sexual abuse.

Sexual harassment is defined by legislation in Victoria. It is when a person:

• makes an unwelcome sexual advance, or an unwelcome request for sexual favours to another person
• engages in any other unwelcome conduct of a sexual nature in relation to another person

where a reasonable person in the circumstances would anticipate the other person would be offended, humiliated or intimidated.

Conduct of a sexual nature can include physical intimacy, remarks with sexual connotations and sexual gestures, actions or comments. The intention of the offender is irrelevant.

Sexual assault and sexual harassment are unlawful and will not be tolerated by the University in our workplace and study environments.

The ‘workplace’ can extend beyond the University campus. For example, sexual assault or harassment in employment can also occur outside working hours where employees are in proximity to each other as a result of a connection with work, such as a conference or work sponsored event.

Likewise sexual assault and harassment can occur in any study related location including the classroom, at conferences, field trips and excursions. Sexual harassment can occur remotely, for example through emails, texts and social media.

Anyone who believes that they have been sexually assaulted or harassed is encouraged to come forward. Responsible staff should take all reasonable steps to prevent sexual assault or harassment and appropriately manage concerns and complaints. Adverse action or reprisal should not be taken against a person who raises a sexual assaulted or harassment issue or concern.

It is important to recognise that forms of behaviour that may initially appear mild or trivial can constitute sexual harassment, particularly in relationships of differing power or status such as a staff member and a student or a manager and an employee.

Victims of serious offences such as sexual assault and stalking will be supported to report to the police if they wish to do so (acknowledging that victims should not be disempowered by having the university report).

At the same time, it is important to acknowledge that relationships and interactions that are based on mutual attraction or friendship and are consensual or reciprocated do not constitute sexual harassment.
 

5.4. Discrimination

The University is committed to providing an environment for work and study that is free from discrimination.

Discrimination is unlawful in education and employment and the provision of goods, services and accommodation.

Discrimination is defined by legislation in Victoria. It includes both direct and indirect discrimination. Direct discrimination occurs if a person treats, or proposes to treat, a person with an "attribute" unfavourably because of that attribute. Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that will disadvantage a person with an attribute and is not reasonable.

For the purposes of determining discrimination, the offender's awareness and motive are irrelevant.

Attributes protected under Federal and Victorian laws include:

• age
• breastfeeding
• carer status
• disability or impairment (including disease or illness)
• employment activity
• gender identity
• industrial activity
• irrelevant criminal record
• lawful sexual activity
• marital status
• parental status
• physical features
• political belief or activity
• pregnancy or potential pregnancy
• race, colour, nationality, ethnic or national origin
• religious belief or activity
• same sex relationships
• gender
• sexual orientation
• social origin.

Anyone who believes that they are being or have been discriminated against is encouraged to come forward. Responsible staff should take all reasonable steps to prevent discrimination and appropriately manage concerns and complaints. Adverse action or reprisal should not be taken against a person who raises a discrimination issue or concern.

5.5. Harassment and vilification

The University is committed to the development of a learning and working environment that is as far as practicable free from all forms of harassment and vilification.

Harassment is any form of behaviour that is not wanted, is not asked for and that a reasonable person would consider likely to create a hostile or uncomfortable workplace by humiliating, intimidating or offending another person because of an attribute protected by the law. (See 5.4. Discrimination above for an explanation of “attributes” protected by discrimination laws.)

Racial and religious vilification is behaviour that incites or encourages hatred, serious contempt, revulsion or severe ridicule against another person or group of people, because of their race or religion. Acts of racial and religious vilification are unlawful in any public place.

Anyone who believes that they are being or have been harassed or vilified is encouraged to come forward. Responsible staff should take all reasonable steps to prevent harassment and vilification and appropriately manage concerns and complaints. Adverse action or reprisal should not be taken against a person who raises a harassment or vilification issue or concern.

5.6. Harm to children and child abuse

The University is committed to the safety of children, and has a zero tolerance for child abuse.

Harm to children, and specifically child abuse, constitutes any act committed against a person under 18 years old, involving:

• physical violence
• sexual offences
• serious emotional or psychological abuse
• serious neglect.

Unacceptable behaviours include:

• putting children at risk of harm or abuse
• exhibiting behaviours with children which may be construed as unnecessarily physical, and initiating unnecessary physical contact including doing things that children can do for themselves
• taking photographs or videos of a child without the consent of the parent or guardians
• engaging in open discussion of adult nature in the presence of children
• ignoring or disregarding any suspected or disclosed child abuse

The University is committed to preventing child abuse and identifying risks early, and removing and reducing these risks. Staff have a duty of care that includes reporting child safety concerns or allegations of child abuse to both internal and external bodies such as the police. The University takes our legal responsibility seriously:

• Failure to disclose: all adults in Victoria who have a reasonable belief that an adult has committed a sexual offence against a child under 16 have an obligation to report that information to the police
• Failure to protect: where there is a substantial risk that a child under the age of 16 under the care, supervision or authority of the University will become a victim of a sexual offence committed by an adult associated with the University, any person of authority in the University will commit an offence if they know of the risk of abuse and have the power or responsibility to reduce or remove the risk, but negligently fail to do so.
• Mandatory reporters must comply with their duties to report.

The University is committed to the participation and empowerment of all children. Of equal importance is the cultural safety of children who may be particularly vulnerable such as Indigenous children, the cultural safety of racially, religiously, culturally and/or linguistically diverse children, and the safety of children with a disability. Any child or family member who has child safety concerns is encouraged to come forward. The University will listen and respond to the views and concerns of children.

5.7. Improper Conduct

5.7.1. General principles

Improper Conduct in this context refers to the wrongdoings covered under the Public Interest Disclosures Act 2012 (Vic) (the PID Act) and the whistleblowing provisions of other applicable laws including the Corporations Act 2001 (Cth) and the Taxation Administration Act 1953 (Cth). Improper Conduct includes:

• fraud and corruption
• criminal offences
• serious professional misconduct
• dishonest performance of public functions
• intentional or reckless breaches of public trust
• intentional or reckless misuse of information
• substantial mismanagement of public resources
• substantial risk to the health and safety of a person
• substantial risk to the environment.

University subsidiary companies (including NICA, SSAA [Swinburne Student Life] and Swinburne Ventures Limited) are covered by two whistleblowing regimes - the Corporations Act and the PID Act.

To avoid confusion, reduce complexity and support effective processes, the University will use consistent language and procedures to implement this policy and deal with disclosures, whether they relate to the University or University subsidiary companies.

The University’s stance on Improper Conduct is guided by the principles of:

• upholding the highest standards of legal, ethical and moral behaviour
• ensuring that the organisational culture and embedded risk controls effectively deter Improper Conduct
• building willingness to report wrongdoing
• ensuring compliance with “public interest disclosure” or “whistleblower” legislation (including the PID Act and the Corporations Act)
• protections for individuals who disclose Improper Conduct
• natural justice.

There are established processes under the University’s Improper Conduct and Whistleblowing Guidelines, and Victorian legislation, for reporting and investigating allegations of improper conduct such as corruption and fraud. Disclosures can also be made about “detrimental action” taken against disclosers. Similarly, the whistleblowing provisions of the Corporations Act, protect the disclosure of “disclosable matters”, which include contraventions of key Commonwealth legislation such as the Corporations Act, criminal offences, conduct that endangers the public and dishonest conduct such as fraud and corruption.

5.7.2. Disclosures

A “disclosure”, whether made under the Victorian Public Interest Disclosure Act or the Corporations Act, is a statutorily protected disclosure or allegation of Improper Conduct. A person (for example a “whistleblower”) may wish to make a disclosure to receive statutory protection from detriment, to ensure anonymity and to have the matter investigated by an external agency.

The University cannot receive and handle public interest disclosures under the Victorian PID Act. Rather, public interest disclosures should be made to the Victorian Independent Broad-based Anti-corruption Commission (IBAC), which has published guidelines to assist disclosers.

A person wishing to report suspected Improper Conduct who does not wish to report to IBAC and use the Victorian public interest disclosure regime can disclose the matter to the University rather than to IBAC.

In the case of disclosable matters concerning University subsidiary companies under the Corporations Act, disclosures can be received by “eligible recipients”, who include company officers, senior managers and auditors.

To support disclosure, the University will nominate a Disclosure Officer as the central contact point for advice, receiving and handling disclosures and ensuring integrity. In addition, the University may also appoint an independent disclosure service provider or “hotline” that is authorised to receive disclosures directly.

Whilst a discloser may elect to report a matter through a number of contact points, all disclosures should be referred or passed on to the University’s Disclosure Officer.

Maintaining confidentiality as required in relation to public interest disclosure matters is crucial, among other things, to ensure detrimental action is not taken against a discloser. It is a criminal offence to disclose information connected with a public interest disclosure, including the identity of the discloser.

Strict integrity processes apply in all cases to the reporting and investigation of alleged Improper Conduct under the University’s Improper Conduct and Whistleblowing Guidelines.

5.7.3. Support to disclosers

The University does not tolerate the taking of detrimental action against those who come forward to disclose matters.

The University recognises the value of transparency and accountability in its administrative and management practices, and supports the making of disclosures that reveal Improper Conduct.

The University will take reasonable steps to protect people who make such disclosures, in good faith, from any detrimental action for reporting the conduct.

A welfare manager or whistleblower protection officer will be appointed by the University where required for disclosers.

5.7.4. Legal protections for disclosers

Disclosers who qualify under legislation as a whistleblower enjoy legal protections including confidentiality, protection from detriment and certain protection from liability.

A discloser may seek independent legal advice or contact an external agency (such as IBAC or ASIC) if they believe they have suffered detriment.

5.7.5. Personal grievances and false reporting

Personal grievances (for example interpersonal conflict or personal work-related complaints) are not disclosable matters covered by this policy and the University’s Improper Conduct and Whistleblowing Guidelines.

Deliberate reporting of matters not covered by these policies and guidelines or which are false or mischievous is discouraged.

5.7.6. Matters already disclosed to the University

If a matter has already been disclosed to the University and handled under a separate process (such as a staff grievance or student complaint or an earlier disclosure), then unless further evidence is identified or disclosed that indicates Improper Conduct and has not already been taken into account in that separate process, the matter will not subsequently be dealt with under this policy or the University’s Improper Conduct and Whistleblowing Guidelines.

Table of roles and responsibilities (VC delegation)

* (Staff holding, acting in or performing the responsible position or office)

Related information

• Fraud, Corruption and Protected Disclosures Guidelines
• Misconduct Resources (staff login)
• Privacy Guidelines
  
• Student General Misconduct Regulations
• Independent Disclosure Hotline
• Unacceptable behaviour complaints process (Complaints Management Framework)