Unacceptable Behaviour

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.

Student General Misconduct Regulations Prevention of Sexual Harm and Response Policy

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 unwelcome behaviour that a reasonable person would anticipate could intimidate, offend or humiliate another person. It may occur as a single incident or through repeated behaviours and may also be experienced indirectly (for example, by witnessing inappropriate conduct directed at others).

Harassment may be verbal, physical, visual, written or psychological in nature. Examples of harassment include, but are not limited to:

making offensive comments or insults masquerading as jokes about particular racial or religious groups;
sending explicit or sexually suggestive emails or messages;
displaying racially offensive or pornographic images or sending explicit images or footage;
making derogatory comments or taunts about a person’s disability;
asking intrusive questions about someone’s personal life, including someone’s sex life; and
repeated inappropriate comments at a colleague’s expense.

Harassment can be unlawful if it relates to a person’s protected attributes under law. Protected attributes include:

Sex
Race
Age
Disability
Sexual orientation
Gender identity
Religion

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.

Any person who believes they are experiencing, experienced, or have witnessed harassment or vilification 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

Improper conduct and whistleblowing guidelines

5.7.1 General principles

The University and its subsidiary companies take reports of Improper Conduct and Misconduct (as defined below) seriously and are committed to conducting their activities with integrity. In this context, the University wishes to promote a workplace environment in which everyone feels safe, supported and encouraged to speak up about any concerns, without fear of reprisal.

The University is subject to the Public Interest Disclosure Act 2012 (Vic) (VIC PID Act). However, Swinburne University cannot receive and handle public interest disclosures under the VIC PID Act. Instead, public interest disclosures must be made to the Victorian Independent Broad-based Anti-corruption Commission (IBAC) in order to be eligible for the protections under the VIC PID Act.

University subsidiary companies (currently Swinburne Ventures Limited) are regulated entities for the purposes of Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act) and the Taxation Administration Act 1953 (Cth) (Tax Administration Act), which provides certain people legal rights and protections as whistleblowers. Under the Corporations Act, certain entities are required to have a whistleblowing policy that addresses the protections under that Act.

To avoid confusion, reduce complexity and support effective processes, the University will use consistent language and procedures to implement the Improper Conduct and Whistleblowing Guidelines and deal with disclosures, whether they relate to Swinburne University or any of its subsidiary companies, unless specifically provided otherwise.

“Improper Conduct” refers to conduct that is reportable under the VIC PID Act in relation to the University, including:

criminal or corrupt conduct;
serious professional misconduct, like theft of public resources such as money or equipment, or using a corporate credit card to buy personal items;
dishonest performance of work responsibilities, like favouring a friend or relative during a procurement or recruitment process;
substantial mismanagement of public resources;
intentional or reckless breaches of public trust;
misusing information or material acquired in the performance of work responsibilities, whether it’s for personal benefit or not;
conduct that prevents or negatively affects the honest performance of work responsibilities, like accepting gifts and hospitality in return for special treatment;
conduct that is intended to adversely affect the effective performance or exercise of work responsibilities and results in the person or their associate obtaining benefits they would not have otherwise obtained;
actions that are a substantial risk to public health, safety or to the environment, like ignoring a serious threat or risk to someone's safety; and/or
conduct that could constitute a conspiracy or attempt to engage in any of the above matters.

“Misconduct” refers to conduct that is reportable under the Corporations Act and/or Tax Administration Act in relation to the University and/or a University Subsidiary Company. It includes misconduct as defined under the Corporations Act (including fraud, negligence, default, breach of trust and breach of duty) and an improper state of affairs or circumstances (which is not defined under the Corporations Act and may include unlawful conduct or otherwise indicate a serious or systemic issue or unethical business behaviour and practices).

The following are potential examples of conduct that can amount to Misconduct (and potentially also Improper Conduct):

fraud, corruption and bribery;
criminal offences or conduct that is otherwise illegal;
serious breaches of the Improper Conduct and Whistleblowing Guidelines or any other University policy, procedure or guidelines;
conduct that is a serious and substantial waste, mismanagement or misuse of the University's resources or public resources;
conduct that causes, or may cause, any loss or reputational impact to the University, or is otherwise detrimental to the University's interests;
conduct that presents a substantial danger to the public, the health and safety of a person or the environment;
serious professional misconduct;
falsification or improper manipulation of research data or findings;
unauthorised provision of information about the University, its employees, students or research activities to other persons or entities including persons or entities that are identified under foreign interference or autonomous sanctions law;
conduct which may amount to Improper Conduct;
detrimental conduct against a person for making a report under the Improper Conduct and Whistleblowing Guidelines;
conduct that could constitute a conspiracy or attempt to engage in any of the above matters; or
deliberate covering up of any of the above behaviour or conduct.

5.7.2 Reporting and investigation procedures

There are established processes under the University's Improper Conduct and Whistleblowing Guidelines, and Federal and Victorian legislation, for reporting and investigating allegations of Improper Conduct and Misconduct. Refer to the Improper Conduct and Whistleblowing Guidelines for further information about how to disclose Improper Conduct and Misconduct.

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

Unacceptable BehaviourPart 5

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