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C2001/89B
UNIVERSITY OF THE WITWATERSRAND, JOHANNESBURG
POLICY AND COMPLAINT PROCEDURES FOR DEALING WITH ALLEGATIONS
OF UNFAIR RACIAL AND SEXUAL DISCRIMINATION
1. Preamble
The University of the Witwatersrand is committed to providing staff and students with the opportunity to pursue excellence and satisfaction in their academic and occupational endeavours. The University fully commits itself to promoting all fundamental rights and freedoms of every person on campus, as required by the Constitution[1], the Employment Equity Act[2] (EEA) and the Promotion of Equality and Prevention of Unfair Discrimination Act[3]. The University fully commits itself to protecting all persons on campus from direct and indirect unfair discrimination and to taking appropriate action against those who unfairly discriminate.
2. OBJECTIVES
The objectives of this policy and these procedures are:
1) To eliminate unfair racial and sexual discrimination in the institution.
2) To ensure that appropriate and accessible procedures exist for staff to address allegations of unfair sexual and racial discrimination.
3. Definitions of RaciAL and SexUAL DISCRIMINATION
(1) For the purpose of this policy, racial discrimination means “any distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”.[4]
(2) For the purpose of this policy, the term sexual discrimination will be extended to include: any distinction, exclusion, restriction, or preference based on sex, gender, pregnancy, family responsibility, sexual orientation or marital status which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in political, economic, social, cultural or any other field of public life.
4. Forms of Racism and Sexism
(1) No member of the University of the Witwatersrand community will behave in a manner that constitutes unfair racial and/or sexual discrimination. Such behaviour will constitute a breach of rights of the persons who are the target of
such discrimination. Furthermore such behaviour will be considered as bringing the University into disrepute.
(2) Unfair racial discrimination may comprise any of the following forms of discrimination:
a) Direct Unfair Discrimination – i.e an overt act of racial discrimination that is not reasonable or justifiable. Hate speech i.e communication including remarks and gestures that impair the human dignity of other persons is a form of harassment that constitutes direct discrimination.
Derogatory remarks concerning a person’s race, ethnicity, colour or nationality are considered as serious forms of unfair discrimination as they continue to promote racial discrimination.
b) Indirect Unfair Discrimination i.e a distinction, exclusion, restriction or preference that on the surface appears neutral but in application unfairly discriminates against individuals or groups.
(3) Unfair sexual discrimination may comprise the following forms of discrimination:
(a) Direct Unfair Discrimination i.e an overt act of sexual discrimination that is not reasonable or justifiable.
(b) Indirect Unfair Discrimination i.e a distinction, exclusion, restriction or preference that on the surface appears neutral but in application unfairly discriminates against individuals or groups.
5. Guiding Principles
(1) The University commits itself to providing an environment in which the dignity of all is respected. Victims of unfair racial or sexual discrimination should not feel that their grievances are ignored or trivialised, or fear reprisals.
(2) All staff and students have a role to play in creating and maintaining an environment in which racism and sexism are unacceptable. They should ensure that their conduct does not cause offence and they should discourage unacceptable behaviour on the part of others.
(3) Management is required to take appropriate action in accordance with this policy when instances of unfair racial and/or sexual discrimination at the University are brought to its attention.
(4) Allegations of unfair racial or sexual discrimination will be viewed extremely seriously and investigated rigorously and promptly. If substantiated, the individual found guilty of such behaviour faces dismissal. However, unsubstantiated, frivolous or malicious allegations will also be viewed in an extremely serious light and the person making such allegations may also face disciplinary action.
6. Application of the Policy
This policy and these procedures apply to all staff of the University of the Witwatersrand:
i) Management
ii) Support Staff employees
iii)Academic employees
whether they are fixed-term or indefinite, full-time or part-time employees.
7. Procedures
These procedures aim to resolve the problems in a sensitive, efficient and effective way. These procedures will replace existing grievance procedures for academic and support service staff in instances when there are allegations of racial or sexual discrimination.
(1) Advice and Assistance
Racism and sexism are sensitive issues and a complainant may feel unable to approach the perpetrator, lodge a formal grievance or turn to colleagues for support. Complainants may therefore approach the Director: Transformation and Employment Equity (T&EE) or the T&EE Project Officer for confidential advice; or, in their absence, anyone designated by the VC.
The Director and the Project Officer:
a) will have the appropriate skills and experience or be properly trained and given adequate resources, to provide support and advice on a confidential basis;
b) will assist the complainant in clarifying whether the offending behaviour
may indeed constitute racial or sexual discrimination;
c) will discuss ways in which the problem might be resolved, including mediation, or lodging a formal complaint;
d) will listen and provide supportive advice to the complainant, whatever course is chosen.
These discussions will be confidential. No formal records, except for minimal statistical information, will be kept. The identity of the alleged perpetrator need not be revealed at this stage.
If the matter can be resolved to the satisfaction of the complainant at this stage, it will be terminated. If the matter remains unresolved, the complainant may request mediation or choose to lay a grievance.
(2) Formal Procedures
If the complainant decides to pursue a formal internal procedure, this may take the form of voluntary mediation or instituting a formal complaint procedure. In either situation, the complainant must, within a period of 30 days of the most recent incident allegedly constituting racial/sexual discrimination, complete a discrimination complaint form, which is submitted to the office of the Director: Transformation and Employment Equity.
a) Voluntary mediation
If the complainant indicates that he/she would like to attempt to resolve the matter through mediation, the Director T&EE who receives the complaint will approach the alleged perpetrator and ascertain his/her attitude to mediation. If the Director T&EE is satisfied that both the complainant and the respondent agree, freely and voluntarily, to mediation, the complaint will be referred to mediation. This will be done by sending written authority to mediate to a member of the University’s Mediation Panel.
Nothing said by the complainant, the respondent or the mediator during and for the purposes of mediation under this procedure is admissible in disciplinary proceedings in the University.
(Detailed Mediation Procedure attached – Annexure A)
b) Formal Complaint
i) If the mediation process fails to resolve the matter, or if either the complainant or alleged perpetrator refuse the option of mediation, the matter will be pursued as a formal complaint, which, after an enquiry, may result in a disciplinary process.
ii) If the matter is pursued as a formal complaint, the line managers of the individuals concerned (complainant and alleged offenders) will be informed.
iii) The person who conducts the enquiry will be appointed by the Director: T&EE, in consultation with the VC.
iv) The identity of the person who conducts the enquiry is critical. He/she must be a person who displays the appropriate sensitivity and at the same time is at an appropriate level to enjoy credibility and authority.
v) Both the complainant and the alleged perpetrator must support the person who is appointed to conduct the enquiry.
vi) The individual appointed to conduct the enquiry will have the authority to call for documents, call for persons to attend interviews, etc.
vii) Care should be taken during the enquiry that the aggrieved person is not disadvantaged and that the position of other parties is not prejudiced if the grievance is found to be groundless.
viii) The individual appointed to conduct the enquiry will compile a report within a specified and agreed period. This report may recommend:-
· a formal disciplinary procedure against the alleged perpetrator
· remedial action
· a rejection of the claim, with reasons for that rejection
ix) A copy of this report will be sent to the Director of T&EE for information and the VC for approval.
x) If the complaint is rejected, the complainant will be free to pursue appropriate external processes if he/she so desires. (see Section 8)
xi) If the recommendation is for disciplinary action, the Disciplinary Procedures for Staff, as agreed between the Joint Staff Working Group and the University of the Witwatersrand, will be effected when the VC ratifies the report, approves the recommendation and sends a copy of the report to the Industrial Relations Office. The matter will be dealt with by the Central Disciplinary Committee.
8. THE RIGHT TO PURSUE EXTERNAL PROCESSES
These procedures do not remove the right of an employee to refer a dispute to the CCMA (in terms of S10 of the EEA) or to pursue a complaint externally in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act. However, employees are urged to exhaust all available internal mechanisms before resorting to such measures.
It should also be noted that the EEA stipulates that:
“The party that refers a dispute must satisfy the CCMA that … the referring party has made a reasonable attempt to resolve the dispute.”[5]
9. Confidentiality
(1) The University must ensure that grievances about racial and sexual discrimination are handled in a manner that ensures that the identities of the persons involved are kept confidential.
(2) The University must endeavour to ensure confidentiality at the disciplinary enquiry.
(3) The relevant provisions of Section 16 of the LRA[6] will apply to the disclosure of information in terms of this policy.
10. Information and Education
(1) All orientation of staff and students must include education on fundamental constitutional rights, racial discrimination, sexual discrimination and the relevant University of Witwatersrand policies on racial and sexual discrimination, disability, employment equity and sexual harassment.
(2) Academic staff are encouraged to promote racial and sexual equality and sensitivity to diversity in their specific courses where relevant.
(3) All staff members are encouraged to promote racial and sexual equality in their respective units/departments.
(4) Communication and Marketing Services will also fully promote and support racial and sexual equality on campus.
11. PROVISION FOR REVIEW OF POLICY AND PROCEDURES
The policy and procedures will be reviewed from time to time and appropriate changes made if necessary
(To replace C92/139B and Annexure A of C2001/89A )
MEDIATION PROCEDURE FOR STAFF AND STUDENTS
AT THE UNIVERSITY OF THE WITWATERSRAND[7]
PREAMBLE
1) From time to time a member of the University community (staff or student) suffers from an infraction of the Code of Conduct , Rules for Student Discipline and/or Disciplinary Rules for University Staff committed by a fellow staff member or student. On occasion, particularly when this infringement takes the form of harassment or discriminatory behaviour, the “victim” is reluctant to come forward for assistance if the inevitable consequence, in his/her mind, will be the institution of formal disciplinary proceedings against the offender. In some of these instances, the institution of formal disciplinary procedures is not an appropriate response. There is consequently a need for less formal kinds of proceedings.
In addition, conflict situations also arise within the institution, between individuals and/or groups of individuals, where no infraction of the Code of Conduct or staff/student rules has occurred, but an intervention is required to resolve the conflict.
Provision is therefore made here for mediation by trained mediators.
2) Mediation is always voluntary, and both parties/groups of parties must agree to it. Agreement to mediation neither commits the complainant to press disciplinary or criminal charges, nor deprives the complainant of the right to do so. If mediation breaks down, the formal complaint/grievance procedure may be instituted, which may or may not lead to a disciplinary procedure.
3) The University is aware that certain kinds of offences ought not to be mediated, for example if a serious crime has allegedly been committed. Care must also be taken to ensure that settlements, even when agreed to by both parties, are appropriate and fair. Cases will therefore be screened by a senior officer of the University both before mediation is allowed to commence and before any settlement reached becomes binding.
PRE-MEDIATION
4) The Vice-Chancellor, or his/her nominee, will appoint a sufficient number of staff and students to act as mediators. These individuals will constitute the University’s Mediation Panel (MP). Where necessary, training will be provided to these individuals. The Vice-Chancellor will also have the authority to remove people from the panel.
5) The Vice-Chancellor, or his/her nominee (see S4) will be the Chair of the MP.
6) A request for mediation may come from a variety of sources, including, for example, directly from a complainant, from an individual whom the complainant has approached for advice or assistance or from a manager who is aware of a real or potential conflict situation between staff and/or students.
7) No mediation process may be initiated unless the matter has been assessed by the Chair of the MP and deemed appropriate for mediation.
8) Before initiating mediation, the Chair of the MP will interview the complainant and ensure that he/she is willing to participate in mediation. The complainant may be accompanied by another staff member or student, as a support person, at this meeting.
9) If the complainant is agreeable to mediation, the Chair of the MP will meet privately with the respondent. At this meeting the nature of the complaint will be outlined, the identity of the complainant will be disclosed, and the attitude of the respondent towards mediation will be ascertained. The respondent may be accompanied by another staff member or student, as a support person, at this meeting.