I am experiencing unacceptable behaviour - What can I do?
If you believe you are being, or have been subjected to unacceptable behaviour, you need to understand Defence’s policy on the management and reporting of unacceptable behaviour. This will help you to make informed decisions about the options available to you. The reference is Defence Instruction (General) Personnel 35-3 Management and Reporting of Unacceptable Behaviour (the instruction). http://defweb.cbr.defence.gov.au/home/documents/DATA/ADFPUBS/DIG/GP35_03.PDF Other information and guidance is available on the Fairness and Resolution (FR) website http://intranet.defence.gov.au/fr
This document provides advice to those who perceive they are the subject of unacceptable behaviour. The subjects covered are:
- What is Unacceptable Behaviour?
- What is not Unacceptable Behaviour?
- What can I do about Unacceptable Behaviour?
- What can I expect if I make a complaint?
- What is involved in the management of a complaint?
- How will I know what decisions are made and what is happening?
- What can I do if I'm not satisfied with the outcome?
Unacceptable behaviour is behaviour that, having regard to all of the circumstances, would be offensive, belittling, abusive or threatening to another person or adverse to morale, discipline or workplace cohesion, or otherwise not in the interests of Defence.
Annex B of the instruction further categorises unacceptable behaviour as:
- harassment;
- workplace bullying;
- sexual harassment;
- discrimination;
- abuse of power; and
- inappropriate workplace relationships and conflict of interest.
Each of these categories is defined in the annex and examples provided. If you believe you are experiencing unacceptable behaviour, you should refer to the annex to see whether the behaviour you are experiencing is identified as unacceptable behaviour.
Note that sexual offences and acts or threats of violence are not managed as unacceptable behaviour. Sexual offences are managed in accordance with DI(G) PERS 35-4 Sexual Offences and acts or threats of violence are discipline related matters to be addressed under the Defence Force Discipline Act 1982 or the APS Code of Conduct.
Occasional differences of opinion, expressed without recourse to foul language, abuse, belittling or humiliation, are not usually regarded as unacceptable behaviour.
Workplace counselling and management of poor performance, conducted in a manner that is neither humiliating nor threatening, is not regarded as unacceptable behaviour.
Legitimate or reasonable management directions, decisions, or actions such as transfers, postings, work or task requirements and recruitment selections are not unacceptable behaviour. More information on what is not unacceptable behaviour is included in Annex B to the instruction.
Firstly consider the responsibilities of all Defence personnel in relation to unacceptable behaviour to:
- behave in a way that upholds the Defence Values, and for ADF members the Navy, Army or Air Force Values (as appropriate) and the DFDA, or for APS employees, the APS Values and Code of Conduct;
- question colleagues whose behaviour toward themselves or others they perceive, or they believe may be perceived to be unacceptable;
- promptly report to their supervisor, commander or manager (as appropriate) incidents of unacceptable behaviour that are beyond their ability or authority to manage;
- monitor their own behaviour and attitude to minimise causing offence; and
- be cognisant of equity and diversity principles and complete the mandatory equity and diversity training.
With these responsibilities in mind, consider your options:
- Do nothing. Questions you should consider in relation this option are: Will the behaviour change if I do nothing? How is this behaviour impacting me? Has it been going on for some time? Are others affected? Does the person concerned realise the effect of their behaviour on me and/or others in the workplace? Behaviour such as bullying can be discreet. Often it occurs when witnesses are not present. In such cases it may be advisable to keep a diary of events to record incidents in as much detail as possible to present in support of your claims when you are ready to act.
- Attempt self resolution or supported self resolution. Informal resolution at the earliest point and the lowest appropriate level has a much greater likelihood of achieving a satisfactory resolution for you than a complaint about an incident or series of incidents that have occurred over time and not been addressed. You can seek the support of your immediate supervisor to do this. Refer to Annex E of the instruction for information about these techniques. Your commander or manager will expect you to have attempted self resolution or supported self-resolution, where practical, before making a complaint. You can make a complaint without having attempted self-resolution or supported self-resolution.
- Seek further advice. If you are not sure how you want to proceed and want to discuss the matter before deciding, there are options available:
- Speak with an Equity Adviser. Discussions with equity advisers are confidential with some exceptions. Some workplaces publish names and contact details of local equity advisers which are displayed in places such as break-out areas. Alternatively, you can phone the Defence Service Centre on 1800 00 677 and ask for the contact details of some equity advisers in your area. The Fairness and Resolution Centres (FRC) also maintain a contact list of equity advisers in the regions. Contact details for the FRCs are found on the FR website. http://intranet.defence.gov.au/fr/ARE/FRCs.htm. The Defence Equity Advice Line on 1800 803 831 also provides confidential equity advice.
Consult a colleague. Your colleagues in the workplace may be a source of advice. These discussions can provide insight into workplace issues that may be relevant to your considerations. Keep in mind that colleagues may be well-meaning in their advice, but not current in their knowledge of the options, techniques and support avenues available in the management of unacceptable behaviour.
Discuss the incident(s) with your supervisor. If you discuss the matter with your supervisor, they may be able to assist with informal resolution. A supervisor has a responsibility to take all practicable action to prevent and eliminate unacceptable behaviour in the workplace, and to respond promptly, seriously, with fairness and sensitivity to allegations of unacceptable behaviour. Generally, a discussion with your supervisor is not a complaint under the instruction unless you clearly state that you want the matter managed as a complaint. However if the incident is beyond your supervisor’s ability or authority to manage, they must refer it to their commander or manager. If you do make a complaint, you should identify whether you raised the matter with your supervisor, and if so, the outcome.
Seek advice from a counsellor or professional. Professional and confidential support services are available to ADF members and APS personnel. ADF members can access the support of medical and psychology professionals using existing processes. Chaplains are also a valuable avenue for discussing personal matters. APS personnel can access the Employee Assistance Program. Refer to Annex C of the instruction for details of support options.
Access information and advice on the FR website http://intranet.defence.gov.au/fr/default.htm
- Make a complaint. If you have unsuccessfully attempted self resolution or supported self resolution, or it was not practical, you may make a complaint. Refer to part two of the instruction for information about unacceptable behaviour complaints. If you make a complaint you must:
Clearly state that you are making an unacceptable behaviour complaint. A complaint can be verbal or written. If it is verbal you should make a record of making the complaint and include information such as to whom you made the complaint, when it was made, what information was provided, and what was said or agreed in relation to the complaint between yourself and the commander or manager.
Provide a description of the incident(s), including the details of what happened, when it happened, where it happened and who was involved in the incident, including witnesses.
Identify what efforts you have taken to attempt self resolution or supported self-resolution, and the outcome of these efforts. This should include efforts to raise the matter with your supervisor.
Identify what you would like to see as the outcome from making your complaint. When you consider this, you need to be aware of the outcomes that are reasonable and possible. An apology, workplace training or modification to workplace procedures would most likely be considered if there is substance to the complaint. However an apology cannot be demanded, it must be offered voluntarily. Pursuing a specific disciplinary outcome may not be within the scope of jurisdiction or sanction available. Outcomes of code of conduct inquiries or ADF administrative inquiries in relation to specific sanctions against respondents are not communicated to other parties for reasons of privacy. An outcome which seeks to remove someone from their position or to have them transferred, is also an outcome that would only be considered in very serious cases.
Part one of the instruction identifies the roles, responsibilities and rights of all Defence parties in the management of unacceptable behaviour. If you make a complaint (the complainant), both you and the person against whom you are directing your complaint (the respondent), have rights and responsibilities.
During the management of an unacceptable behaviour complaint both the complainant and respondent have a right to:
- access appropriate support services, as detailed in Annex C of the instruction;
- procedural fairness* in the management of a complaint;
- protection from victimisation, or other unfair disadvantage as a result of an unacceptable behaviour complaint;
- protection of their personal information in accordance with the Privacy Act; and
- be informed of the progress of the complaint, including the resolution and their rights to review.
As the complainant, you can also expect that:
- your complaint will be viewed seriously and dealt with as promptly as possible; and
- your wishes will be considered in determining how a complaint is to be resolved. Note it is the responsibility of the commander or manager as to how the complaint is resolved. This may or may not be the outcome you desired.
You have a responsibility to:
- where practicable, attempt self-resolution at the lowest appropriate level in the circumstances (refer to Annex E of the instruction); and
- state clearly that you have an unacceptable behaviour complaint, and provide a full, fair and honest account of the incident(s), include any supporting information and identify the outcome you seek to achieve.
* Procedural fairness is the legal principle that provides the right to a fair hearing. For an explanation of the principle and rules of procedural fairness refer to ADFP 06.1.3 Guide to Administrative Decision Making or the Decision-makers Handbook: Making personnel related decisions for ADF members and APS employees which is available on the Pay and Conditions website.
Annex D of the instruction details who is responsible for managing a complaint and the complaint management process. Generally it is the respondent’s commander or manager who will manage the complaint. If you submit a complaint to your commander or manager, and the respondent is not in the same chain of command or reporting line as you, your commander or manager will refer the matter to the appropriate person.
The first step for the commander or manager is to conduct a Quick Assessment (QA). The QA is to establish the known facts and recommend a course of action. A QA is not an inquiry or an investigation. The commander or manager will then make decisions based on the QA. The decisions may be:
- No further action. The commander or manager may determine that no further action is warranted under the circumstances, for example there is insufficient information or evidence to warrant inquiry or informal resolution.
- Informal resolution. The commander or manager may determine that the matter may be resolved informally. Often the parties are satisfied with this. Sometimes the complainant is not satisfied, for example you may desire an apology but it is not forthcoming or it may be a reserved or qualified apology. If the commander or manager is satisfied that the behaviour has been addressed and the informal resolution has been conducted and the behaviour addressed, the complaint will be closed.
- Conduct further inquiries. As the QA is not an investigation, it cannot be used as the basis for adverse findings. If the commander or manager determines that further inquiries are required, the appropriate authority is advised and the relevant administrative process is commenced. For a complaint against an ADF respondent, it may be an inquiry under the Defence (Inquiry) Regulations. Complaints against an APS employee will be referred to the Code of Conduct delegate. An external service provider respondent will have their further involvement with Defence managed under the relevant contract arrangements. A complaint that results in further inquiries may take some time to conclude. The complaint will remain open until the inquiry is complete and decisions related to the inquiry are made.
Throughout the complaint management process, commanders and managers are required to keep the parties to the complaint informed. A case officer may be appointed to do this, particularly in large units/workplaces. There is no distinct timeline for providing you with progress reports or updates, though you could expect that as changes occur or milestones are reached (eg mediation completed, inquiry report provided to delegate) you should be informed.
If the commander or manager determines the behaviour is not unacceptable, or there is insufficient information or evidence to warrant further inquiry or informal resolution, you are to be informed of the reasons for this finding and advised of your review rights.
If the commander or manager finds there is sufficient information to warrant further action, especially if their view is to resolve the matter informally, they should discuss with you the resolution options. If you have previously identified your desired outcome, this may not be necessary. If you have expressed a desire for an outcome that is not likely, probable or possible, the commander or manager should counsel you about your expectations.
An unacceptable behaviour complaint is finalised either at the initial assessment stage after the QA, or otherwise when all inquiries are complete, and formal or informal resolutions have concluded. Both you and the respondent are to be informed the matter has been resolved and advised of any review rights.
In the past, both complainants and respondents have been concerned about the time it takes for a complaint to be managed. It will be useful for you to be aware of current benchmarks on time taken for complaint management. When considering these timeframes, firstly appreciate that about two thirds of all complaints reported to FR have been resolved informally.
- 25% of all complaints were resolved within one month (these will have been resolved informally)
- A further 52% of all complaints were resolved between 1-3 months (ie 77% resolved within 3 months)
- 15% of all complaints were resolved within 3-6 months (these will have been formal resolutions)
- The balance of 8% took more than 6 months.
If you are not satisfied with the outcome, the first step is to communicate this with the commander or manager. If you remain dissatisfied after being informed of the reasons for the decision(s) you may consider your review rights. Refer to Annex E of the instruction.
- An ADF member may submit a Redress of Grievance. The Inspector General ADF also provides an avenue by which any failure of military justice may be examined.
- A non-SES APS employee may apply for a Review of Actions.
- External Service Providers do not have a right to review. They should address their grievance to the contract manager or to their employer.
A complaint may be submitted to an external agency (such as the Commonwealth or Defence Force Ombudsman, or the Australian Human Rights Commission) in addition to, in lieu of, or subsequent to a complaint submitted within Defence. It is usual practice for external agencies to require Defence personnel to have pursued the complaint with Defence in the first instance.
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