Archdiocese of Canberra and Goulburn
Catholic Education Office

Equal Employment Opportunity (NSW)

Related Policies:

Breast Feeding and Work
Complaints
Employment of School Employees (Non-Teaching Staff)
Employment of Teachers
Employment of Teachers to Promotions Positions
Job Share
Principal, Appointment of
Sexual Harassment
Teaching in Catholic Schools – A Statement of Principles

Purpose:

To give effect to the mission of the Catholic Education Office to be an inclusive and welcoming
community by eliminating as far as possible discrimination in the workplace.

Policy:

. The Catholic Education Office is committed to ensuring that the CEO and its Archdiocesan schools are
workplaces which promote equal employment opportunity, encourage diversity and are free as far as
possible from discrimination.

Discrimination in the workplace is unlawful. Individuals' rights are protected under the Age Discrimination
Act 2004(Cth), Disability Discrimination Act 1992 (Cth), Equal Opportunity for Women in the Workplace
Act 1999 (Cth), Human Rights and Equal Opportunity Commission Act 1986 (Cth), Racial Discrimination
Act 1975 (Cth), Sex Discrimination Act 1984 (Cth), Workplace Relations Act 1996 and the Anti-
Discrimination Act 1977 (NSW).

In NSW it is unlawful for an employer to discriminate against a person (whether a current or a
prospective employee) on the grounds of the person’s:
  > Age 1;
  > Disability 2;
  > Family Responsibilities 3;
  > Marital Status 4;
  > Potential Pregnancy 5;
  > Pregnancy 6;
  > Race, colour, descent, national origin, ethnic origin 7;
  > Responsibilities as a carer 8;
  > Sex 9.

Sexual harassment and other forms of harassment are also forms of discrimination 10. Vilification of
homosexuals,11 vilification of those infected with HIV/AIDS,12 transgender vilification13 and inciting racial
hatred 14 are unlawful.

The Workplace Relations Act 1996 (Cth) in so far as it may apply to systemic schools in NSW prohibits
the termination of a person’s employment for any one or more of the following reasons or for reasons
including the following reasons:
  > Union membership or non membership;
  > Seeking to or actually representing employees;
  > The filing of a complaint or participating in proceedings against an employer;
  > Race, colour, sex, sexual preference, age, physical or mental disability, marital status, family
responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  > Absence from work during maternity leave or other parental leave;
  > Temporary absence from work because of the carrying out of a voluntary emergency
management activity.15

Nothing in this policy limits the Catholic Educations Office’s right to avail legislated exemptions or to
apply for exemptions under the relevant Acts. Exemptions are generally available where a person’s
particular characteristics are injurious to the religious susceptibilities of the organisation or would
prevent the person from fulfilling the inherent characteristics of the particular position.

The Catholic Education Office and School Leaders will ensure that all allegations of discrimination,
workplace harassment and workplace bullying are taken seriously. Processes outlined in this policy will
be used to investigate and seek resolution of complaints.

Adult students who sexually harass staff members or other students will be subject to the processes
outlined in this policy. Schools are required to develop policy, procedures and training programs which
ensure adult students are aware of the meaning and effect of sexual harassment and their obligations
under the law.

Definitions:

Adult Student A student who is 16 years or older.

Complaint Manager is the person appointed by the Head of Human Resources to manage a complaint
alleging discrimination, harassment or bullying. The Complaint Manager’s role is to provide information to
complainants and persons complained about, investigate complaints and to make recommendations
based on reasonable enquiry to the Head of Human Resources.

Direct Discrimination is where a person is treated unfairly or differently because of the person’s sex,
racial group, age or other defined attribute. It is direct discrimination to make any decision based on
stereotyped views or prejudices about people of different genders, ages, racial groups and so on. Direct
discrimination happens when decisions are made about what a person can and can’t do because the
person has been put into a box labelled ‘woman’, ‘man’, ‘indigenous’, and so on rather than the person
being treated as an individual. 16

Discrimination is defined slightly differently in each of the relevant statutes. Discrimination may be
direct or indirect. For specific instances or circumstances reference should be made to the applicable
statute.

Discrimination …. Means:
   (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political
opinion, national extraction or social origin that has the effect of nullifying or impairing equality
of opportunity or treatment in employment or occupation; and
   (b) any other distinction, exclusion or preference that:
         i. has the effect of nullifying or impairing equality of opportunity or treatment in
employment or occupation; and
        ii. has been declared by the regulations to constitute discrimination for the
purposes of this Act;
but does not include any distinction, exclusion or preference:
   (c) in respect of a particular job based on the inherent requirements of the job; or
   (d) in connection with employment as a member of staff of an institution that is conducted in
accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed,
being a distinction, exclusion or preference made in good faith in order to avoid injury to the
religious susceptibilities of adherents of that religion or creed.17

Indirect Discrimination can occur when everyone is treated the same way. Under anti-discrimination
law this type of discrimination is called ‘indirect discrimination’. The law on indirect discrimination works
this way.

If you have:
  > a rule, requirement or policy that is the same for everyone, but
  > it results in more people of one sex being disadvantaged compared with the other sex, or
more people of one ethnic group being disadvantaged compared with another ethnic group,
or more people of one age group being disadvantaged compared with other age groups
(and so on), then
  > if you can’t show that this rule, requirement or policy is reasonable in all the circumstances,
it will be indirect discrimination and against the law.

This applies to unwritten rules, requirements and policies as well as written ones. 18

Sexual Harassment  A person sexually harasses another person if:
   (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours
to the other person, or
   (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other
person,

in circumstances in which a reasonable person, having regard to all the circumstances, would have
anticipated that the other person would be offended, humiliated or intimidated.19

Workplace Bullying "is the repeated less favourable treatment of a person by another or others in
the workplace, which may be considered unreasonable and inappropriate workplace practice. It includes
behaviour that intimidates, offends, degrades or humiliates a worker." (Source ACTUQ/QCCI/Qld Govt
Dept of Workplace Health and Safety)

Bullying behaviour can range from very obvious verbal or physical assault to very subtle psychological
abuse. This behaviour may include:
  > physical or verbal abuse
  > yelling, screaming or offensive language
  > excluding or isolating employees
  > psychological harassment
  > intimidation
  > assigning meaningless tasks unrelated to the job
  > giving employees impossible jobs
  > deliberately changed work rosters to inconvenience particular employees
  > undermining work performance by deliberately withholding information vital
for effective work performance.20

Workplace Harassment  In general, harassment is any form of behaviour that:
  > is not wanted, not asked for, and not returned, and
  > is likely to cause a hostile or uncomfortable workplace by:
      > humiliating someone (putting them down), or
      > seriously embarrassing them, or
      > offending them, or
      > intimidating them, and
  > happens because of their sex, pregnancy, race, disability, homosexuality,
transgender, age or carer’s responsibilities or because of one of their
relatives’, friends’ or colleagues’ sex, pregnancy, race, disability,
homosexuality, transgender or age.21

Workplace Equal Employment Opportunity (EEO) Contact Officer is a point of contact and referral
for members of the school staff regarding matters of EEO.

Procedures:

System Leaders will ensure that Policies and Procedures for the prevention of harassment, discrimination
and bullying in the workplace are developed, practised and regularly brought to the attention of all staff.
Selection and recruitment processes must comply with EEO principles and anti-discrimination law. The
Chairperson convening selection panels must always ensure that members of the panel are briefed, before selection processes begin, about fair, equitable and lawful selection processes. The Form: EEO Guidelines for Interview Panels (NSW) must be used for this purpose.

Complaints alleging discrimination, harassment or bullying in the workplace will be accepted and
responded to using the following procedures. The circumstances of each complaint will be unique.
Procedures may need to be modified to meet the particular circumstances of each complaint. Variations
to these procedures should always be discussed with the complainant, the Principal and the relevant
Human Resources (HR) Officer.

It is acknowledged that sometimes the person making the complaint is not the person aggrieved by the
allegedly discriminatory behaviour. Colleagues or associates might report circumstances which allege
discrimination. These complaints must be taken seriously. It is recognised that these procedures will
need to be modified to ensure that the person(s) who is allegedly aggrieved is informed about the
complaint, the law, CEO policy and that his or her views are considered.

Complaints will be handled sensitively, confidentially, with impartiality and within a reasonable
timeframe. All parties have a right to procedural fairness.

A person making complaint can expect that he or she will be listened to and have the complaint taken
seriously. Complainants should be informed about how the complaint will be handled, who will get to
know about the complaint and how she or he will be protected from victimisation or breach of
confidentiality.

Persons complained about can expect:
  > to be told all of the allegations, including who has made them;
  > that the level of investigation and response will be proportionate to the seriousness of the
alleged misconduct:
  > reasonable notice for interviews and notification of who will be present at any interview;
  > the right to have a support person present for interviews;
  > the opportunity to give his or her side of the story;
  > the opportunity to respond to adverse findings and to comment on any proposed action to be
taken against him or her by the Catholic Education Office.

Nothing in this document negates the right of an employee or the Catholic Education Office to seek
independent legal advice, union advice or direct referral to other agencies such as the NSW Anti
Discrimination Board or the Human Rights and Equal Opportunity Commission (HREOC).

A. When the complaint is about conduct or behaviour which allegedly discriminates.

1. If possible, the complainant (the person who is making the complaint) tries to sort out the grievance
or complaint.

2. If this does not work, is inappropriate, or the complainant does not want to approach the other party
the complainant:
    2.1 gets confidential advice from their Workplace EEO Contact Officer. The complainant
may then:
           > decide there is no problem, or
           > try to sort out the problem personally by talking with the person(s) causing the grievance. or
    2.2 raises the complaint with the Principal. If the complaint involves the Principal or the
complainant is not a school-based employee the complaint can be raised with a HR officer
directly. or
    2.3 raises the complaint with a HR officer directly.

Some complainants may be embarrassed, frightened or too upset to raise the complaint directly.
Complainants may wish to ask a family member, friend, union delegate, colleague or other advocate
to help them make the complaint.

3. A Complaint Manager is Appointed.

If the complaint is referred to the Principal the Principal must inform the school's CEO HR
Officer. The HR Officer and the Principal, if appropriate, will consider the complaint
and determine who will be the best person to manage the complaint (Complaint Manager).
Consideration must be given to bias, perceptions of bias or potential conflicts of interest between
the parties and the complaint manager. In most cases the complaint manager will be a HR Officer or the school’s Principal.

4. The Complaint Manager and the Complainant Meet.

The complaint manager will meet with the complainant and his or her support person as soon as
possible and:
(i) clarify the nature of the complaint with the complainant;
(ii) ask the complainant how he or she wants the complaint resolved;
(iii) outline to the complainant as far as possible:
       > how the complaint will be investigated;
       > what will be done to protect the complainant from victimisation;
       > who will be the decision maker;
       > the time line;
       > how the complainant will be involved in the process.
       > information about available support, counselling, or representation if needed.

This meeting should usually happen within two (2) working days of the complaint being
made.

5. The complaint manager meets with the person(s) about whom the complaint is being made
(PCA).

The complaint manager puts the information he or she has received from the complainant to (each)
PCA and gets his or her side of the story. If possible at least 24 hours notice should be given to the
PCA before this meeting. The PCA should also be invited to bring a support person to this meeting.

The complaint manager will outline as far as possible to the PCA:

  > how the complaint will be investigated;
  > who will be the decision maker;
  > the time line;
  > how the PCA will be involved in the process.
  > information about available support, counselling, or representation if needed.

This meeting should usually happen within four (4) working days of the complaint being
made.

6. Early Finalisation

The complaint manager, after consultation with the complainant, may determine that the complaint
can be finalised without further investigation because the facts are not in dispute. The complaint
manager may recommend an apology, a meeting between the parties, changes to policy and
procedure or other appropriate action which will likely lead to resolution. Sustained serious
allegations however, should never be finalised at this stage. Even if the complainant and the PCA
are agreed on what happened serious matters must be referred to the Head of Human Resources
for possible disciplinary action.

When there are no witnesses to the alleged behaviour, the PCA denies the allegation, there is
insufficient information to determine where the truth lies and the complaint is low level or unlikely
to result in disciplinary action the complaint manager must:

  > Document the complaint and the processes used to handle the complaint;
  > Inform the PCA that discrimination in the workplace is unlawful and may lead to disciplinary
action or dismissal. This advice must be confirmed in writing by the Head of Human
Resources;
  > Provide copies of relevant policy documents to all parties;
  > Advise both parties of their rights to access further information and advice from organisations
such as the NSW Anti Discrimination Board), HREOC (Commonwealth), their union or
solicitor;
  > Provide advice to both parties regarding appropriate behaviour from this point of time forward.
Advice should aim to get parties back to a working relationship and prevent
victimisation, re-occurrence of misconduct and vexatious complaints.
  > Monitor the situation.

Serious matters must be referred to the Head of Human Resources.

This stage should ideally be completed within ten (10) working days of the complaint being
made.

7. Investigation

If further information needs to be gathered by the complaint manager before decisions are made the
complainant and the PCA should be given the opportunity to nominate witnesses and lines of
enquiry.

The Head of Human Resources and the complaint manager plan the investigation, conduct risk
assessment, plan management of risk and propose a time line for completion.

The complaint manager investigates and documents the investigation. Only those witnesses who
need to be interviewed should be interviewed. The level of investigation should reflect the
seriousness of the complaint. All witnesses must be asked to maintain confidentiality.

The complainant and PCA will be given the opportunity to comment on information gathered before
the complaint manager makes any report or recommendation to the Head of Human Resources.

The investigation should ideally be completed within ten (10) working days of the complaint
being made.

8. Decision Making

The Head of Human Resources considers all available information and if satisfied that the
investigation is complete makes a finding on the balance of probabilities. It may be found that:

  > The alleged incident or conduct did occur; or
  > The alleged incident or conduct did not occur. Consideration should be given as to whether
the complaint was made mischievously or vexatiously; or
  > The evidence is inconclusive but there is some evidence that the alleged incident or
conduct did occur; or
  > Another finding is appropriate in the circumstances such as the complaint was
misconceived or out of the jurisdiction of the employer.

Where the evidence is inconclusive but there is some evidence that the alleged incident or
conduct did occur the Head of Human Resources will:

  > Inform the PCA that discrimination in the workplace is unlawful and may lead to disciplinary
action or dismissal. This advice must be confirmed in writing by the Head of Human
Resources;
  > Provide copies of relevant policy documents to all parties;
  > Advise both parties of their rights to access further information and advice from
organisations such as the NSW Anti Discrimination Board, HREOC (Commonwealth),
their union or solicitor;
  > Provide advice to both parties regarding appropriate behaviour from this point of time
forward. Advice should aim to get parties back to a working relationship and prevent
victimisation, re-occurrence of misconduct and vexatious complaints.
  > Monitor the situation.

If it is found that the alleged incident or conduct did occur the Head of Human Resources will
also consider any mitigating factors before resolution or disciplinary action is determined. The
mitigating factors that might need to be taken into account will depend on the circumstances of the
case but could include things like:

  > Whether there is explicit policy about the particular breach and whether this has been
adequately communicated to the PCA;
  > Training and education provided;
  > The level of experience of the PCA;
  > Any provocation by others;
  > Any particular personal or health characteristics of the PCA;
  > Whether the school or CEO condoned or contributed to the breach;
  > The length of the PCA’s previous unblemished work and behaviour record.

The Head of Human Resources will inform the complainant of the finding.

The Head of Human Resources will inform the PCA of the finding. Findings which are adverse to
the PCA are preliminary findings.

The PCA is provided with the opportunity to respond to an adverse finding within ten (10) working
days.

The employee is advised of any proposed disciplinary action and invited to respond within ten (10)
working days.

The PCA’s written response to an adverse finding will be given due consideration.

The Head of Human Resources determines the finding, consulting where necessary with the
complaint manager and the complainant.

The Head of Human Resources advises the PCA in writing of:
  > The final finding;
  > Disciplinary or other action;
  > Procedures in place for the storage of files in relation to this complaint;
  > The availability of appeal procedures;
  > The availability of support and / or counselling.

B When the complaint is about an employment related decision, process or
policy which allegedly discriminates

1. If a person feels aggrieved about an employment related decision, process or policy made
or implemented by the Catholic Education Office on the grounds that the decision, process
or policy discriminates against that person (the complaint) then the complainant may
complain and seek examination of the decision, process or policy.

2. The complainant should raise his or her concerns with the Head of Human Resources.

3. The Head of Human Resources will appoint a complaint manager(s) to handle the
complaint.

4. The complaint manager will meet with the complainant and gather as much information as
possible from the complainant and other sources about the complaint and other relevant
circumstances. The complainant will be asked to provide any documents, correspondence,
names of witnesses, lines of enquiry and any other information which will help to determine
whether discrimination has occurred.

5. The complaint manager will gather information from the relevant CEO officer(s) or
employee(s) involved with the determination or policy which led to the complaint.

6. Analysis of all information should be made against the background of existing policy,
Commonwealth and Territory law. Advice could be sought from the NSW Anti-Discrimination Board, HREOC (Commonwealth) or through other relevant sources.

7. The complaint manager will document enquiries and submit a report and recommendation
to the Head of Human Resources within 30 days of receipt of the complaint.

8. The Head of Human Resources determines the finding, consulting where necessary with
the complaint manager and the complainant

9. The complainant will be informed in writing of the finding and any recommended action with
regard to the complaint.

Appeals

The complainant or the person complained about can lodge an appeal with the Director of Catholic
Education within twenty one (21) days of the final finding being made. The Director will appoint a new
complaint manager who will rehear the grievance following the same broad steps as the first complaint
manager.

The Director will make a finding and recommend action for resolution and or disciplinary action as soon
as possible after the complaint manager closes the investigation.

The complainant or the person complained about has the right to contact the NSW Anti Discrimination
Board or the HREOC (Commonwealth) at any
time during the grievance or following the closure of the complaint by the Catholic Education Office.

Restoring Relationships

Following the closure of the complaint the parties involved may have to continue to work together.
Others in the school community may have been affected by the complaint. There may be some
impediments to positive working relationships.

The Principal, unless he or she is the complainant or PCA, will be best placed to monitor and
recommend strategies to help restore relationships. School leaders should not presume that once the
complaint handling processes are finalised everyone will return to positive working relationships. There
may well be lingering resentment or hostility from either side.

People who have been involved in the complaint should be given the opportunity to debrief in a safe and
non-judgemental environment. Being given the opportunity to discuss what has happened and to
confidentially express thoughts and feelings may help alleviate risks to confidentiality.

When the parties to the complaint are ready it may be beneficial for a meeting to be held so that closure
can be achieved. No one should be forced or coerced to apologise or to attend mediation. A forced or
qualified apology may reopen the issue. Hostile parties at mediation will create anxiety and may result in
behaviour which reopens the issue.

Parties to the complaint should be offered counselling.

Parties to the complaint should be asked to provide feedback about how the complaint was handled
through the Workplace EEO Contact Officer.

Security of Records and Documentation

All documentation relating to complaints, allegations and ongoing investigations must be maintained in a
secure and confidential environment with access restricted to the person conducting the inquiry and
other authorised person(s).

Information regarding the complaint, investigation and finding will not normally be noted in any personal
record maintained at school in relation to the employee. This means the information will usually be
removed from any records or files such as personnel, student records or similar files. Such records
should be forwarded to the CEO for confidential and secure storage; they must not be destroyed.

A record will be included on an employee’s personal file if the complaint is proven, it results in
disciplinary action and the Director believes that a record on file is necessary to appropriately document
the matter.

1 s 18 Age Discrimination Act 2004 (Cth)
2 s 15 Disability Discrimination Act 1992 (Cth)
3 ss 4A, 7A Sex Discrimination Act 1984 (Cth)
4 ss 6, 14 Sex Discrimination Act 1984 (Cth)
5 ss 4B, 7, 14 Sex Discrimination Act 1984 (Cth)
6 s 14 Sex Discrimination Act 1984 (Cth)
7 Part 2 Anti Discrimination Act 1977 (NSW); ss 9, 15 Racial Discrimination Act 1975 (Cth)
8 Part 4B Anti Discrimination Act 1977 (NSW)
9 ss 4C, 14 Sex Discrimination Act 1984 (Cth)
10 Part 2A Anti Discrimination Act 1977 (NSW); Ss 28A, 28B Sex Discrimination Act 1984 (Cth)
11 ss 49ZT, 49ZTA Anti Discrimination Act 1977(NSW)
12 Part 4F Anti Discrimination Act 1977(NSW)
13 Division 5 Anti Discrimination Ac t 1977 (NSW)
14 Part IIA Racial Discrimination Act 1975 (Cth)
15 s 659 Workplace Relations Act 1996(Cth)
16 Anti-Discrimination Board of NSW Anti-Discrimination and Equal Employment Opportunity
(EEO) Guidelines 2005 p5
17 S 3 Human Rights and Equal Opportunity Commission Act 1986 (Cth)
18 Anti-Discrimination Board of NSW Anti-Discrimination and Equal Employment Opportunity
(EEO) Guidelines 2005 p6
19 S 22A Anti-Discrimination Act 1977 (NSW)
20 Human Rights and Equal Opportunity Commission website
21 Anti-Discrimination Board of NSW Anti-Discrimination and Equal Employment Opportunity
(EEO) Guidelines 2005 p7

References:

Anti-Discrimination Board of NSW Anti-Discrimination and Equal Opportunity (EEO) Guidelines
September 2005
Anti-Discrimination Board of NSW Grievance Procedure Guidelines, May 1998

Forms:

EEO Guidelines for Interview Panels (NSW)