What to do?

The information below is adapted from the Human Rights Commission’s own procedure for dealing with bullying.

Options

Anyone who considers they have been subjected to discrimination, harassment, bullying or victimisation may take any one or more of the actions listed below.

TEU members can seek advice from TEU organisers.
Some institutions provide an Employee Assistance Programme (EAP) with counsellors and advice.  Check this with your institution.

  1. Self help
  2. Informal complaints procedure
  3. Formal written complaints procedure
  4. Complaints under the Employment Relations Act
  5. Complaints under the Human Rights Act
  6. Complaints under the Health and Safety Act
  7. Criminal complaints
  8. Natural justice
  9. Support during the process
  10. Interim measures once a formal complaint has been lodged
  11. Consequences and/or Sanctions
  12. Records

Self-help


We recognise these self-help options will not be appropriate or safe in all situations


The complainant may:

  • tell the respondent verbally that their behaviour is offensive and request that it stop;
  • write to, or e-mail the respondent about the behaviour on a ‘personal and confidential’ basis requesting that it stop; or
  • speak to the respondent in the presence of a support person of their choice requesting that the behaviour stop.
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Informal complaints procedure

  • Informal complaints means with a contact person’s help (where they may exist), asking a third person, a friend, colleague, TEU delegate or branch committee member, or manager 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). Some institutions may have a dedicated disputes resolution person;
    • 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 written complaints procedure.
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Formal complaint procedures

  • Anyone who believes they have been discriminated against, harassed, bullied or victimised has the right to make a formal, usually written, complaint.
  • If the matter is serious a formal complaint can be lodged without going through self-help and/or informal intervention. However in most circumstances, complainants are encouraged to work through their institution/organisation’s informal complaint system in the first instance before lodging a formal complaint.
  • A formal complaint would normally be given to any manager (or their manager), or directly to Human Resources. Complainants would need to check their collective agreement as well as their institution/organisation’s procedures.
  • If it is appropriate to lodge a personal grievance, there are defined processes to be followed in accordance with the Employment Relations Act.
  • 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).
  • 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 may have 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.
  • Once a formal complaint has been made, complainants should be advised of the formal complaint procedure, and told that they may bring a support person/union representative with them to any interview if they wish. A support person may be a friend, family member or a colleague for example. The complainant should be informed about what type of actions the employer might take if the complaint is upheld or if it is not established.
  • An investigation would typically involve interviews with the complainant, the respondent, and any other relevant people. A copy of the written complaint, including the complainant’s name, would be provided to the respondent.
  • The complainant and respondent would each be provided with a copy of the report of the investigation and would be entitled to provide a written response within an indicated time period, prior to a decision being made.
  • The report would then be submitted to the appropriate person in the institution/organisation who would decide what action will be taken.
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Complaints under the Employment Relations Act

  • A complainant can lodge a personal grievance under the Employment Relations Act 2000 (refer to the appropriate clause in your Collective Employment Agreement).
[note color=”#Fcb040″]Important Note: Where TEU members have sought advice from TEU organisers in relation to a potential personal grievance, TEU internal processes for determining whether or not to lodge a personal grievance will be followed.[/note]
  • 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, the next step is likely to include the mediation services provided by the Department of Labour.
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Complaints under the Human Rights Act

  • 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.
  • Important Note: A complainant cannot lodge a complaint under both the ERA and the HRA.
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Complaints under the Health and Safety in Employment Act

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Criminal Complaints

  • Complaints of a criminal nature, for example physical or sexual assault or stalking, are a police matter as well as an employment matter and may require that a complaint should be made direct to the police.
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Natural justice

  • The rights of both parties to a formal complaint should be protected by the principles of natural justice. These include:
    • 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 should be taken during the investigation of any complaint of alleged harassment and afterwards to prevent any disadvantage to the complainant or respondent.
  • Care should 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 acted on by reporting this to their manager or to the appropriate human resources personnel.
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Support during the process

The complainant, the respondent, other staff, and any support people involved should be advised what support may be available during the process. This could include for example, access to an Employee Assistance Programme (EAP) for confidential counselling.

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Interim measures once a formal complaint has been lodged

Good practice in an institution/organisation once a formal complaint has been lodged could include the following:

  • Interim measures to ensure the complainant and the respondent do not work closely together until the matter is resolved may be appropriate, dependent 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 that would be taken into account when deciding on interim measures would include eliminating the risk of disruption to the workplace or retaliatory action, and whether or not 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 should be discussed with the complainant and respondent before any decision is made.

  • Such action should not be taken to mean that the complaint has been accepted, but the institution/organisation is providing interim relief before resolution of the issue.
  • The complainant and the respondent would normally be advised not to attempt to contact each other about the complaint.
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Consequences and/or Sanctions

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

  • the person who has carried out the harassment;
  • the complainant; plus
  • 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 training for 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;
  • Other measures to promote respectful behaviour amongst employees and create a positive workplace culture.
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Records

If a complaint is substantiated, a record of disciplinary action or other decisions taken concerning employees would normally be kept by on the employee’s personnel file. The record may be placed on the employee’s personnel file for a specified period of time.

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