Department of Community Safety

Human Resources Procedure No. B2

Version: 2.0 Date effective: 25/10/2011

Harassment, Sexual harassment and Unlawful discrimination

1. Purpose
The purpose of this procedure is to provide the minimum standards of behaviour expected of all employees within DCS, with respect to issues of workplace harassment, sexual harassment and discrimination.

2.

Scope
This procedure applies to all employees of DCS.

3.
3.1.

Procedure
Principles

3.1.1. DCS is committed to ensuring a healthy and safe workplace that is free from all forms of harassment (including sexual harassment), and unlawful discrimination. 3.1.2. Behaviour which would constitute workplace harassment, sexual harassment or unlawful discrimination is unacceptable and will not be tolerated in any form, under any circumstances by any person in DCS. 3.1.3. All claims of workplace harassment, sexual harassment or unlawful discrimination, in any form, will be treated seriously, and managed promptly and fairly. 3.1.4. Reasonable and appropriate managerial actions (such as providing constructive feedback, counselling on work performance or workplace behaviour) do not amount to workplace harassment. 3.1.5. Disciplinary action (which may include penalties up to and including dismissal) may be taken, by an authorised delegate, where an employee has been found to have: harassed (including sexually harassed) another person; unlawfully discriminated against another person; victimised someone who has made a complaint; or made a frivolous or vexatious complaint.

3.2.

Workplace Harassment

3.2.1. Workplace harassment occurs when a person is subjected to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the persons employer or a coworker or group of co-workers of the person that: a) is unwelcome and unsolicited; and b) the person considers to be offensive, intimidating, humiliating or threatening; and c) a reasonable person would consider to be offensive, intimidating, humiliating or threatening. 3.2.2. Some examples of harassment in the workplace may include, but is not limited to: physical or verbal abuse; yelling, screaming or offensive/inappropriate language (including in emails); belittling, teasing, humiliating or constantly criticising another person;

Developed By: HR Branch

DCS HR Procedure B2 Harassment, Sexual harassment, and Unlawful Discrimination

Version 2.0

displaying written or pictorial material which is offensive; excluding or isolating another person; intimidating or threatening another person; deliberately giving another person impossible tasks to set them up to fail; deliberately undermining work performance; or spreading rumors or gossip about another person with the intent of causing the person detriment.

3.3.

Sexual Harassment
a) subjects another person to an unsolicited act of physical intimacy; or b) makes an unsolicited demand or request (whether directly or by implication) for sexual favours from the other person; or c) makes a remark with sexual connotations relating to the other person; or d) engages in any other unwelcome conduct of a sexual nature in relation to the other person; and the person engaging in the conduct described in paragraphs (a), (b), (c) or (d) does so i. with the intention of offending, humiliating or intimidating the other person; or ii. in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct.

3.3.1. Sexual harassment occurs when a person:

3.3.2. Examples of sexual harassment may include, but is not limited to: unwelcome physical touching; sexual or suggestive comments, jokes or innuendo; unwelcome requests for sex; the display of sexually explicit material such as posters or pictures; unwanted invitations or questions about a persons private life; staring or leering; sex based insults or taunts; or offensive communications, including telephone calls, letters, faxes and email.

3.4.

Unlawful discrimination
a) sex; b) relationship status; c) pregnancy; d) parental status; e) breastfeeding; f) age;

3.4.1. The Anti Discrimination Act 1991 prohibits discrimination in relation to the following attributes:

g) race; h) impairment; i) religious belief or religious activity;

Uncontrolled when printed. Individuals are responsible for ensuring they have the current version which is accessible from the Departmental intranet site.

DCS HR Procedure B2 Harassment, Sexual harassment, and Unlawful Discrimination

Version 2.0

j)

political belief or activity;

k) trade union activity; l) lawful sexual activity;

m) gender identity; n) sexuality; o) family responsibilities; or p) association with, or relation to, a person identified 3.4.2. An action that constitutes unlawful discrimination may be direct or indirect. 3.4.3. Direct discrimination on the basis of an attribute occurs if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is, or would be treated in circumstances that are the same or not materially different. 3.4.4. For unlawful direct discrimination to be found, it is not necessary that the person who discriminates considers the treatment is less favourable, and the persons motive for discrimination is irrelevant. 3.4.5. Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term: a) with which a person with an attribute does not, or is not able to comply; and b) with which a higher proportion of people without the attribute comply or are able to comply; and c) that is not reasonable. For example: An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress. 3.4.6. Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example: a) the consequences of failure to comply with the term; and b) the cost of alternative terms; and c) the financial circumstances of the person who imposes, or proposes to impose, the term. 3.4.7. For unlawful indirect discrimination to be found it is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination. 3.4.8. The Anti-Discrimination Act 1991 provides a number of exemptions to the prohibition of discrimination (eg. for genuine occupational requirements, or where the discrimination may be otherwise permitted by law). Where an employee believes that an exemption may exist, advice must be sought from the Human Resources (HR) Branch prior to taking any action.

3.5.

Responsibilities

3.5.1. All employees of DCS have a responsibility to ensure that workplace harassment, sexual harassment and unlawful discrimination does not occur in the workplace. 3.5.2. All employees must: treat others with respect, dignity, and comply with standards of appropriate and ethical behaviour, as described in the Code of Conduct and other related policies/procedures; not engage in behaviour that may constitute workplace harassment, sexual harassment and/or unlawful discrimination; report any instances of workplace harassment, sexual harassment and/or unlawful discrimination, whether witnessed or personally experienced in accordance with 3.6;
Uncontrolled when printed. Individuals are responsible for ensuring they have the current version which is accessible from the Departmental intranet site.

DCS HR Procedure B2 Harassment, Sexual harassment, and Unlawful Discrimination

Version 2.0

not make frivolous or vexatious complaints; understand that for complaints to be fairly and promptly resolved, information may be provided to relevant parties, including the accused person, in line with the principles of natural justice and procedural fairness; and understand that disciplinary action may be taken against those who are found to have breached the Departments policies, procedures, or Code of Conduct.

3.5.3. Supervisors/Managers must: proactively ensure workplaces for which they are responsible are free from workplace harassment, sexual harassment, and unlawful discrimination; model appropriate and ethical behaviour at all times; ensure allegations of inappropriate behaviour are considered seriously, dealt with fairly and promptly at a local level wherever possible; ensure that all employee complaints referred to them are resolved fairly, and in accordance with the provisions of the DCS HR Procedure Employee Complaints Management; refer any allegations of suspected official misconduct to the Ethical Standards Unit; maintain accurate and up to date notes of the handling of all complaints, including decisions, actions and reasons for decisions and actions; provide support and advice about resolution options to all parties; ensure information and material obtained during the complaint process is handled with discretion and with an appropriate level of confidentiality; ensure individuals who report legitimate concerns are not subject to penalty or reprisal.

3.6.

Reporting workplace harassment, sexual harassment and/or unlawful discrimination

3.6.1. DCS is committed to addressing and resolving all allegations of workplace harassment, sexual harassment, and/or unlawful discrimination. 3.6.2. Where an employee is concerned about possible workplace harassment, sexual harassment, and/or unlawful discrimination the employee should raise these concerns in accordance with the provisions of the DCS HR Procedure Employee Complaints Management. 3.6.3. Where it is believed that the nature of a complaint may constitute suspected official misconduct, the matter must be referred to the Ethical Standards Unit for assessment. 3.6.4. All employees are able to access the confidential services provided by Divisional Employee Assistance Providers, which provides the opportunity for employees to receive additional support in dealing with workplace issues.

4.

Definitions
Term
Bullying Frivolous complaint

Definition
Is a term often utilised to describe workplace harassment. A complaint may be considered frivolous if it: discloses no cause of action; is insupportable in law; or is groundless.

Uncontrolled when printed. Individuals are responsible for ensuring they have the current version which is accessible from the Departmental intranet site.

DCS HR Procedure B2 Harassment, Sexual harassment, and Unlawful Discrimination

Version 2.0

Term
Natural Justice

Definition
Is an administrative law principle that provides for fairness in decision making. Natural justice has two rules: a) Rule against bias: decision makers are to be objective, free from bias, and have no personal interest in the matter being decided; and b) Hearing rule: an individual is to be informed of the substance of any allegations against them and have the opportunity to present their case prior a decision being made.

Official Misconduct

Has the meaning given to it for the purposes of the Crime and Misconduct Act 2001. Official misconduct is conduct that could, if proved, be a) a criminal offence; or b) a disciplinary breach providing reasonable grounds for terminating the persons services, if the person is or was the holder of an appointment.

Vexatious complaint

Vexatious indicates there is an element of bad faith in the complaint. A complaint is vexatious if it is a frivolous complaint which has been lodged:

to harass or intimidate; to cause delay or to frustrate other lawful proceedings; without reasonable grounds; for a purpose other than addressing the subject matter of the complaint; or for another wrongful purpose.

5.

Related documents

Ambulance Service Act 1991 Anti-Discrimination Act 1991 Corrective Services Act 2006 Crime and Misconduct Act 2001 Fire and Rescue Service Act 1990 Human Rights and Equal Opportunity Commission Act 1986 (Cth) Industrial Relations Act 1999 Information Privacy Act 2009 Public Sector Ethics Act 1994 Public Service Act 2008 Racial Discrimination Act 1975 (Cth) Racial Hatred Act 1995 (Cth) Sex Discrimination Act 1984 Public Interest Disclosure Act 2010 Workplace Health and Safety Act 1995 Workplace Health and Safety Regulation 2008 Directive 08/10 Managing employee complaints Workplace Health and Safety Queensland - Prevention of Workplace Harassment Code of Practice 2004

Uncontrolled when printed. Individuals are responsible for ensuring they have the current version which is accessible from the Departmental intranet site.

DCS HR Procedure B2 Harassment, Sexual harassment, and Unlawful Discrimination

Version 2.0

DES Disability Discrimination Prevention (including Reasonable Adjustment) Policy DES Disability Discrimination Prevention (including Reasonable Adjustment) Procedure DCS Harassment and Bullying Policy Statement DCS Sexual Harassment Policy Statement DCS HR Procedure Employee Complaints Management

6.

Authority
Director-General

7.

Amendments register
Version
October 2011

Description This procedure supersedes: DES HR Policy titled Workplace Harassment Prevention Policy version 1.0 2004 DES HR Policy titled Unlawful Discrimination (including Sexual Harassment) Prevention 2004 QCS Discrimination/Harassment Procedure v.2 QCS Workplace Bullying Procedure v1.0

Uncontrolled when printed. Individuals are responsible for ensuring they have the current version which is accessible from the Departmental intranet site.