• Every person has the right to be treated with dignity and respect at work.
• Any person who considers they have experienced discrimination, harassment, bullying or victimisation is encouraged to take action.
• Such behaviour is not tolerated by the Commission and will be regarded as serious misconduct if found to be occurring.
• Complaints will be dealt with speedily, confidentially and fairly and complainants will not be victimised because they make a complaint.
• Everyone involved will have the right to a fair process.
• Appropriate action could involve warnings, removal from the work area or dismissal.

• Discrimination occurs when someone, or a group of people, is/are treated less favourably than another person or group in the same or similar circumstances, because of a particular characteristic.
• Discrimination or harassment on any of the grounds specified in the Human Rights Act (Sex, Marital status, Religious belief, Ethical belief, Colour, Race, Ethnic or national origins, Disability, Age, Political opinion, Employment status, Family status, Sexual orientation) is unlawful when it occurs in the areas specified in the Act (includes employment), subject to specified limitations.

• Harassment is any unwanted and unwarranted behaviour that a person finds offensive, intimidating or humiliating and is repeated, or significant enough as a single incident, to have a detrimental effect upon a person’s dignity, safety and well-being. The behaviour can range from that causing slight embarrassment through to criminal acts.
• Examples of workplace harassment are:

–          a generally ‘hostile’ work atmosphere of repeated put-downs, offensive stereotypes, malicious rumours, or fear tactics such as threatening or bullying;

–          a general work atmosphere of repeated jokes, teasing, flirting, leering or sleazy ‘fun’;

–          harassing other communication technology users, whether through language, frequency or size of messages;

–          comments or behaviour that express hostility, contempt or ridicule for people of a particular race, age, sexual orientation or any other identified group; and

–          an isolated but significant incident, such as a violent attack or sexual assault.

• Racial harassment is uninvited behaviour that humiliates, offends or intimidates someone because of their race, colour, or ethnic or national origin. It can involve spoken, written or visual material or a physical act.  It can include:

–          making offensive remarks about a person’s race;

–          mimicking the way a person speaks;

–          making jokes about a person’s race;

–          calling people by racist names; and

–          deliberately pronouncing people’s names wrongly.

• Sexual Harassment is either a request for sexual activity together with a promise of preferential treatment or a threat of detrimental treatment; or language, visual material, or physical behaviour of a sexual nature. It is behaviour that is unwelcome or offensive to the person subjected to it, repeated or significant, and causes harm to a person’s employment, job performance or job satisfaction, or personal life.
• It can include:

–          personally sexually offensive verbal comments;

–          sexual or smutty jokes;

–          repeated comments or teasing about someone’s alleged sexual activities or private life;

–          persistent, unwelcome social invitations, telephone calls or any other form communication technology from workmates at work or at home;

–          following someone home from work;

–          offensive hand or body gestures;

–          unwelcome physical contact – e.g. patting, pinching, touching or putting an arm around another person’s body;

–          provocative visual material – e.g. posters of a sexual nature;

–          sending and receiving pornographic, sexually explicit or offensive material through communication technology;

–          hints or promises of preferential treatment in exchange for sex, or threats of differential treatment if sexual activity is not offered; and

–          sexual assault and/or rape.

• Bullying is a persistent misuse of power, whether formal or informal. It is offensive, abusive, intimidating, malicious or insulting behaviour. It makes the recipient or target feel upset, threatened, humiliated, or vulnerable and undermines self-confidence. It has a detrimental effect upon a person’s dignity, safety, self-confidence and well-being and may cause them to suffer stress. It can be overt or covert. Bullying can be exercised by anyone in any position in an organisation.
• Overt bullying can include:

–          threats, intimidation, stand over tactics and coercion;

–          verbally abusive or degrading language or gestures;

–          shouting, yelling or screaming;

–          unexplained rages;

–          unjustified criticism and insults, nit-picking and fault finding without justification;

–          constant humiliation, ridicule and belittling remarks;

–          unjustified threats of dismissal or other disciplinary procedures; and

–          punishment imposed without reasonable justification.

• Covert bullying can include acts such as:

–          deliberately overloading an employee with work and imposing impossible deadlines;

–          sabotaging someone’s work by withholding information that is required to fulfil tasks;

–          hiding documents or equipment;

–          constantly changing targets or work guidelines;

–          not providing appropriate resources and training;

–          isolating or ignoring someone on a consistent basis; and

–          changes in the duties or responsibilities of an employee to the employee’s detriment without reasonable justification.

• Bullying between people may include teasing, practical jokes, gossiping, excluding co-workers and criticising co-workers on a regular and systematic basis.

• Victimisation is treating or threatening to treat someone less favourably because they have made a complaint, or are believed to have made a complaint, of discrimination, harassment, or bullying.
• Examples include being:

–          sidelined for training or promotion;

–          snubbed by co-workers; and

–          pressured to drop the idea of a complaint.

• The following are examples of behaviours that are not considered to be harassment or bullying:

–          friendly banter, light-hearted exchanges, mutually acceptable jokes and compliments;

–          friendships and relationships where both people consent to the relationship;

–          issuing reasonable instructions and expecting them to be carried out;

–          warning or disciplining someone in line with organisation policy;

–          insisting on high standards of performance in terms of quality, safety and team cooperation;

–          legitimate criticisms about work performance (not expressed in a hostile, harassing manner);

–          giving critical feedback, including in a performance appraisal, and requiring justified performance improvement;

–          assertively expressing opinions that are different from others;

–          free and frank discussion about issues or concerns in the workplace, without personal insults; and

–          targeted EEO policies, parental leave provisions, or reasonable accommodation and provision of work aids for staff with disabilities.

• Addressing harassment should not be seen as an attempt to prevent people from doing their jobs or to prevent people from having a reasonable amount of fun or good humour at work. It is about respecting the dignity of people and supporting their right to feel safe and respected at work.
• Occasional differences of opinion, conflicts and problems in working relations are part of working life and do not constitute bullying.
• Workplace counselling, managing underperformance, or other legitimate action in accordance with HRC policy and procedures, are not bullying or harassment.
• People may sometimes cause offence or harm unintentionally.  A principle of harassment is that it is not the intention, or the behaviour, but the way it is received and the effect it has on the person.,

• The possibility of defamation arises when someone broadcasts the problem outside the proper channels to those with no genuine interest or need to know about it.
• A person can sue another person for defamation if they believe a false statement has been made that is likely to injure their reputation.
• The complainant, alleged harasser and those properly involved in a complaint are protected against defamation where the complaint is made honestly and without malice, and is made only to those who have a duty to receive it, such as those people noted in the first bullet point of 5.3 and in 5.4.
• The Commission indemnifies all individuals making a complaint in the course of following these procedures against action for defamation, provided they have acted in good faith and in accordance with these procedures.

• The Commission has a Privacy and Information Policy and a Privacy and Information Protocol which explains the Commission’s obligations in relation to access to and protection of information.
• The Policy states that people have a right to access to any information the Commission holds about them.  This right is guaranteed in relation to both personal information and in relation to allegations made about people involved in a formal complaint.
• Access to personal information and/or information about a complaint may be denied only where there is a good reason for doing so.
• Access may be refused where:

–          it would endanger the safety of another person;

–          it would involve the unwarranted disclosure of another person’s affairs;

–          the information concerned is subject to legal professional privilege; or

–          it would breach an obligation of privacy undertaken at the time the information was gathered.

• All information received by the Commission in relation to the making of a formal complaint will upon its receipt become official information under the Official Information Act 1982 (“OIA”).
• Requests pursuant to the OIA for such information must be dealt with in terms of the OIA.
• If the Commission receives a request under the OIA which relates to information that concerns or relates in any way to a formal complaint it will notify the person the information relates to in writing of this and may ask the person to assist the Commission in matters relating to the request.

• The Privacy Act governs the collection, use and disclosure of personal information i.e. information about a living, natural person.  The basic principle underlying the Privacy Act is that a person’s consent should be obtained before information about them is gathered, used, or disclosed.
• When the Commission collects personal information about any natural person it will ensure that it meets the following obligations:

–          Ensure it collects only information that is necessary to enable it to carry out its lawful functions.

–          Wherever possible gather information directly from the person concerned.

–          Explain to the person it is gathering information from:

ñ          whether or not they have a choice about providing the information

ñ          what the information will be used for

ñ          who the information will be disclosed to

ñ          what their rights relating to access to and correction of information are.

–          Refrain from collecting information by means that are underhand or unfair.

• Anyone who considers they have been subjected to discrimination, harassment, bullying or victimisation may take any one or more of the actions listed below.
• The choice of which process is the most appropriate is a matter for the complainant. There are contact people in each office whose role is to help and support individuals.

–          speak to the respondent in the presence of a support person of their choice requesting that the behaviour stop.

• Informal complaints means with a contact person’s help, asking a third person, a friend, colleague, PSA delegate, manager or Commissioner to help resolve the situation.
• This person needs to talk both with the complainant and then with the person against whom the complaint is made.
• If the respondent accepts the accuracy of the complaint; an attempt will be made to resolve the matter informally as requested by the complainant.
• If the respondent does not accept the facts or only accepts some of them, but is willing to settle the complaint informally and the complainant is satisfied with this, then the matter is resolved.
• If both parties agree to settle the complaint informally then the matter is resolved.
• Sometimes mediation may be an appropriate way to resolve the issue.
• Mediation can be a powerful tool for both parties to understand the intention and impact of the behaviours and to find practical solutions that will facilitate an ongoing working relationship and it can also provide the basis for changing behaviour. It is not always appropriate and its use should be weighed up carefully by the parties involved.
• Mediation may be appropriate when:

–          an appropriately skilled and trained mediator is available (maybe from the Department of Labour);

–          both parties are interested in trying to resolve the situation through mediation;

–          an appropriately trained and skilled mediator is available who has the confidence of both parties.

• If the matter is not able to be resolved informally then the process moves to the formal complaints procedure as outlined in 5.4.

• Anyone who believes they have been discriminated against, harassed, bullied or victimised has the right to make a formal complaint.
• If the matter is serious a formal complaint may be lodged without going through self-help and/or informal intervention. However in most circumstances, the complainant should be encouraged to work through the Commission’s informal complaint system in the first instance before lodging a formal complaint.
•  A formal complaint can be given to any manager or directly to the Corporate Services Manager.
• Managers who receive formal complaints will liaise immediately with the Corporate Services Manager to jointly identify an appropriate, impartial person to investigate the complaint.
• If a complainant explicitly lodges a personal grievance, the matter will be referred to the Corporate Services Manager and the Executive Director.
• The Corporate Services Manager will direct complaints concerning the Executive Director, Commissioners or Director OHRP to the Chief Commissioner and complaints about the Chief Commissioner to the Chair of the Audit Committee.
• A formal complaint should be written and signed by the complainant outlining details of the alleged incident(s). It should be made by the person who has allegedly been discriminated against/harassed/bullied (the complainant). However, it may be made by a colleague at the complainant’s request.
• A formal complaint should outline:

–          the identity of the person(s) against whom the complaint is made;

–          what happened (including the time(s), date(s), place(s), what was said and done);

–          how the complainant responded and what impact the alleged behaviour had on them;

–          what actions (if any) the complainant has taken to stop the alleged harassing behaviour;

–          whether anyone else witnessed the alleged behaviour; and

–          an indication of the outcome that the complainant is seeking.

• The complainant will be advised of the formal complaint procedure, and that they may bring a support person with them to any interview if they wish. This support person may be a PSA delegate, a lawyer, or a friend/colleague. The complainant will be informed about what type of actions the Commission might take if the complaint is upheld or if it is not established.
• The investigation, by the line manager or Corporate Services Manager, will involve interviews with the complainant, the respondent, and any other relevant people. A copy of the written complaint, including the complainant’s name, will be provided to the respondent.
• The complainant and respondent will be provided with a copy of a report of the investigation and they will be entitled to provide a written response within an indicated time period, prior to a decision being made. The report will then be submitted to the Executive Director (Chief Commissioner for Executive Director, Commissioners and Director OHRP and Chair of Audit Committee for Chief Commissioner) who will decide what action will be taken.
• The Corporate Services Manager will seek appropriate legal assistance and advice when necessary and she/he will hold all documentation on any investigation, report, decision and action taken in a secure confidential physical and electronic file. No electronic information will be stored on shared networks.
• Interim measures to ensure the complainant and the respondent do not work closely together until the matter is resolved may be appropriate, dependant upon the nature of the complaint and the relationship between the complainant and respondent.
• Such measures could include moving the complainant or respondent to another area, arranging for the complainant or respondent to work from home or for the complainant or the respondent to be on paid leave until the matter has been investigated and resolved.
• Factors to be taken into account when deciding on interim measures include eliminating the risk of disruption to the workplace or retaliatory action, and whether the complainant or respondent is likely to experience further stress by the presence of the other party.
• If any interim measures are to be taken, they will be discussed with the complainant and respondent before any decision is made. The decision to implement any interim measure will be made by the Executive Director (Chief Commissioner for Executive Director, Commissioners and Director OHRP and Chair of Audit Committee for Chief Commissioner). Such action does not mean that the Commission has accepted the complaint, but is providing interim relief before resolution of the issue.
• The complainant and the respondent will be advised not to attempt to contact each other about the complaint. The complainant will be advised that they are entitled to contact the PSA if they are a member and that they can report harassment to the police, particularly where an assault or serious intimidation is alleged to have taken place.
• The complainant, the respondent, other staff, and any family members involved will also be advised that they can contact the Employee Assistance Programme (EAP) for confidential counselling.

Note:  In all cases the Corporate Services Manager, Executive Director, Chief Commissioner or Audit Chair may select an alternative person to act in their stead should they judge that to be the right thing to do in the particular circumstances of the situation.

• The rights of both parties to a formal complaint will be protected by the principles of natural justice. These are:

–          freedom from bias on the part of the person making the decision/judgment; and

–          transparency and fairness of the procedure.

• Guidelines for a fair process include:

–          taking a complaint seriously and acting on it immediately;

–          maintaining confidentiality;

–          giving the problem resolution procedure priority and responding in a timely manner;

–          informing a respondent of the allegations against them;

–          giving a respondent the opportunity to respond to the allegation;

–          not asking irrelevant questions;

–          keeping both parties informed about progress of an investigation;

–          ensuring the parties’ safety is protected during an investigation, including protection from retaliation or victimisation;

–          giving both parties a full opportunity to read/see and respond to all evidence collected in an investigation before a decision is made;

–          considering all the evidence and weighing it carefully before deciding whether there is substance to the complaint;

–          providing both parties with a copy of the decision and the reasons for the decision, and their options in terms of settlement, review, etc.;

–          ensuring any disciplinary action is proportionate to the level of behaviour complained of; and

–          offering the right of appeal or review

• Care will be taken during the investigation of any complaint of alleged harassment and afterwards to prevent any disadvantage to the complainant or respondent.
• Care will also be taken during the investigation to protect the mana/respect of the person against whom the complaint was made and any other parties involved.
• Retaliation against people who have been involved in a harassment complaint in any way is unacceptable.
• Any work difficulties experienced by people involved in either an informal or formal complaint should be reported immediately to their manager or to the Corporate Services Manager (Chief Commissioner for Executive Director, Commissioners and Director OHRP and Chair of Audit Committee for Chief Commissioner).

• A complainant can, at any time, lodge a personal grievance under the Employment Relations Act 2000 (refer to clause 37 of the Collective Employment Agreement).
• The Employment Relations Act promotes mediation as the preferred way to resolve any employment relationship problem. If a personal grievance cannot be resolved by direct discussion between the parties involved, they are encouraged to use the mediation services provided by the Department of Labour.
• Alternatively, if an employee believes they have been discriminated against, sexually harassed or racially harassed they can lodge a personal grievance under the Human Rights Act 1993.
• A complainant can also lodge a claim under the Health and Safety in Employment Act 1992 claiming harm due to workplace stress.
• Complaints of a criminal nature, for example physical or sexual assault or stalking, are a police matter as well as an employment matter. If a complaint of this nature is made the Corporate Services Manager will seek appropriate legal advice.
• Although Contact People can provide general information about mechanisms for complaints to be addressed outside the Commission, they do not act in a support or advocacy role in these circumstances.

• When harassment or bullying is being carried out by a client, member of the public or contractor, the employee should inform their manager, another manager, or Corporate Services.
• The Commission will investigate and take all reasonable steps to stop it happening again.
• This may involve speaking directly with the person concerned, lodging a complaint with the contractor’s employer, or obtaining a trespass order against the person.

• In resolving a substantiated complaint, the Corporate Services Manager and/or legal adviser will be consulted, so that any action meets legal/procedural fairness requirements, prior to the Executive Director (or Chief Commissioner, in the case of a complaint involving Commissioners, Director OHRP, or the Executive Director) deciding what action will be taken.
• Allegations of victimisation as a result of reporting or being a witness to discrimination, harassment, bullying, or victimisation will be regarded as potentially serious misconduct and automatically result in a formal investigation. If proven, resulting disciplinary action may include dismissal.
• If the complaint is not substantiated and does not appear to be malicious or vexatious, the reasons for the decision will need to be explained to both parties, separately. The manager may also need to discuss further options with each of the parties and monitor the relationship between them.
• If, however, it appears that the complaint is malicious, vexatious or frivolous, there may be grounds for disciplinary action against the complainant.

• Following an investigation and a finding that bullying or harassment did take place, the Commission will consider appropriate action for:

–          the person who has carried out the harassment;

–          the complainant; and

–          the organisation

• Appropriate action may include any of the following:

–          formal apologies;

–          counselling, mentoring or training for the harasser/bully;

–          counselling for the complainant;

–          appropriate measures to restore the relationship between the two parties (this could include relocation of the harasser/bully, depending upon the seriousness of the incident);

–          reimbursement of any costs associated with the discrimination, harassment, bullying or victimisation such as medical or counselling fees;

–          re-accrediting any annual leave taken as a result of the discrimination, harassment, bullying or victimisation;

–          disciplinary action against the harasser/bully, for example oral or written warnings (could include dismissal depending upon the seriousness of the incident); and

–          further general training for Commissioners, Managers or staff on the issues of harassment, adjustment of policies and procedures to either reduce the risk of harassment or to enable the organisation to respond more effectively.

• If the complaint is substantiated, a record of disciplinary action or other decisions taken concerning employees will be kept by on the personnel file (or by the Chief Commissioner for Commissioners and Director OHRP and Chair of Audit Committee for Chief Commissioner).  This record may be placed on the employee’s personnel file for a specified period of time.

• The Commission will ensure that support mechanisms including counselling services are available for all individuals who believe they are being, or have been discriminated against, harassed, bullied or victimised.
• Likewise, anyone who has been accused of harassment is also entitled to support during the resolution process. The Commission may also be able to provide assistance to an individual where their behaviour is found to constitute harassment and they have agreed to undertake some counselling or receive support to help/rehabilitate them.
• The Commission recognises the potential impact of harassment on the parties involved. Complainants should therefore not have to confront their alleged harasser or vice versa, if either party so wishes.

• This policy has been supported by and developed with the PSA. It will be communicated to employees using a variety of methods including posters, leaflets and training.
• Periodic workshops on harassment and bullying will be held for all staff, managers and Commissioners and are integral to induction activity.
• Part of the challenge of developing a diverse workforce is to ensure that all new staff and Commissioners are fully integrated into the existing teams and activities of the organisation and understand the organisation’s values and expected standards of behaviour.
• A comprehensive programme of training will be provided for managers to ensure they have the knowledge and skills necessary to implement the organisation’s policies effectively. They will have training on:

–          what discrimination, harassment and bullying are, what they are not, and why they are an issue;

–          the options open to complainants;

–          managers’ responsibilities towards all parties involved;

–          handling interviews with complainants and respondents;

–          why it is difficult for people to complain;

–          what managers can do to prevent discrimination, harassment and bullying;

–          what to do when harassment is alleged and how to deal with the complainant as well as the alleged harasser; and

–          effective delegation, motivation and improving communication and interpersonal skills, as well as in dealing with employee differences and conflict.

• Contact people and Investigators will receive initial training in the issues, as well as refresher training and ongoing support, since their role can at times be stressful.
• Research indicates that those supporting others and those investigating bullying are often bullied and are accused of being bullies during the period of the investigation. Contact people and investigators will be given the support they require in order to contend with the complex and difficult situations they encounter.

• Everyone has a responsibility to prevent workplace discrimination, harassment, bullying, and victimisation.
• All Commissioners and employees are responsible for modelling appropriate behaviour at all times and participating in any training/education on the policy.
• The roles of people who have specific responsibilities are outlined below.

• Contact people provide confidential assistance and support to individuals who believe they have an issue with harassment.
• They are a source of general information about discrimination, harassment, bullying, and victimisation in the workplace, and about internal and external options for action.
• Where a person requests no action be taken, the contact person must explain all options available and reassure the complainant about confidentiality and the sanctions for victimisation.
• The complainant’s preference for non-action may be overridden in some circumstances because the Commission has a legal obligation and a duty of care to provide a safe working environment. In this circumstance the contact person will inform the Corporate Services Manager.  However, usually it is ultimately up to the complainant to choose what action to take.
• A contact person will not speak for a complainant, provide counselling or be involved in investigations of discrimination, harassment or bullying.
• Their role is to:

–          Listen to the individual;

–          Provide advice on the options for resolving the issue;

–          Support the individual to choose a course of action;

–          Create an environment that assists the individual to follow through with their chosen course of action; and

–          Follow up to ensure the problem is resolved

• Details of the alleged incident and any action by the contact person are confidential information and will be held initially by the contact person.
• If the complainant makes a formal complaint and it is substantiated this information will be forwarded to the Corporate Service manager and retained by the Commission. It will be placed on the personnel file of the harasser or bully.
• If the complaint is not substantiated, the information will be disposed of securely.
• Contact people will receive training but this does not provide them with the skills to be an investigator, mediator or trainer. The Corporate Services Manager may decide to nominate selected personnel for further training in these more specialist areas.
• Contact people are selected from the most suitable personnel, taking into account the balance of gender, ethnicity, office location and level within the Commission.

Details of Contact People are available on staff notice boards, the shared drive and in the New Employee Induction Manual.

• The Corporate Services Manager works with staff, managers, Commissioners and clients and may intervene at any level as appropriate.
• The role includes overseeing the integrity of the policy and process. She/he is a source of general information and can provide information about discrimination, harassment, bullying, and victimisation, and about internal and external options for action.
• The Corporate Services Manager is responsible for ensuring that:

–          appropriate support of Commissioners, the Management Team and other staff of the Commission is provided;

–          training on preventing discrimination, harassment and bullying in the workplace is resourced and provided for all staff and Commissioners every two years;

–          in each office of the Commission there is a minimum of one trained contact person able to respond sensitively to employees who want advice on discrimination, harassment, bullying, and victimisation; ideally, contact people will be representative of staff;

–          contact people receive support and training as needed to carry out their role effectively and are allocated time to be able to adequately undertake their duties;

–          all records are kept for the appropriate period, according to the Public Records Act, and they are kept confidential; and

–          selection criteria for management positions include the requirement that managers have demonstrated ability to deal with sensitive human resource issues.

• Harassment mediators have undergone recognised training in conflict resolution strategies.
• They provide a service to individuals who have an issue with harassment or bullying by acting as an intermediary between affected parties.
• A complainant may formally request assistance from a Mediator.

• Harassment investigators have undergone training in procedures of investigation.
• The Commission may appoint an Investigator to investigate an allegation of discrimination, harassment or bullying when a written complaint has been received.

• Managers within the Commission are familiar with this policy and are prepared to explain the options to any staff who complain of harassment or bullying.
• Managers must:

–          make it clear to staff that the Commission will not tolerate any form of harassment;

–          set standards of behaviour and model exemplary standards of professional conduct at all times;

–          ensure that the work environment does not condone language, behaviour or visual material that is unwanted by, or offensive to any staff member;

–          have a role within the Commission ensuring accessibility and promoting and explaining the Commission’s Dignity at Work policy;

–          provide appropriate information and education on discrimination, harassment, bullying, and victimisation to all new staff as a standard part of induction;

–          ensure that all complaints are dealt with according to the standards set out in this policy;

–          act quickly and effectively where a complaint is bought to their attention;

–          treat any complaint with confidentiality and sensitivity; and

–          not trivialise any complaint.