Ethical Behaviour Policy

Purpose

The purpose of this policy is to promote ethical interactions between members of the University community and to provide an environment of safety, respect and dignity so members can participate fully in all aspects of University life.

Organisational scope

This policy applies to all members of the University community.

Definitions

For the purpose of the Policy, the following definitions will apply:

Campus

All premises, grounds and buildings owned by, in the possession of, or administered by the University, including residential colleges managed by the University.

Complaint

A request for formal action.

Contact Person

A staff member or student appointed by the Ethical Behaviour Committee to advise people with concerns about their options (http://www.otago.ac.nz/mediation)

Manager

The appropriate manager of the relevant workplace including the head of school/department/service, a section head, a dean or a warden of a residential college.

Mediation

The process in which an acceptable third person assists participants with concerns or disagreements to reach a mutually-acceptable solution.

Mediator

The University Mediator.

Member of the University community

• a member of the academic or general staff employed by the University or its subsidiaries, whether employed on a permanent, fixed-term, full-time, part-time or casual basis;
• any person who is pursuing any course of study at the University or its subsidiaries, including any person enrolled as an internal or extramural student and any person attending any examination conducted by the University;
• a member of the Council of the University;
• an academic visitor to the University or its subsidiaries;
• an emeritus professor or senior associate of the University;
• any person holding an honorary or adjunct title;
• a resident in a residential college that is managed by the University, whether or not the resident is a student at the University;
• any other person working on the campus of the University. This includes staff of the Otago University Students' Association or its subsidiaries.

Party

A person or a group of people bringing or responding to a formal complaint.

Person Complained About

A member of the University community against whom a formal complaint has been made under this Policy.

Person Complaining

An individual member of the University community, or a group of members of that community, taking a formal complaint under the Policy.

Representative

Anybody nominated by a party (e.g. lawyer, union representative, the Otago University Students' Association, or other) who has delegated authority to speak, discuss, and negotiate on behalf of the party.

Support Person

Someone who provides personal support to a person with a concern or in a dispute but is not a representative for that person.

Supervisor

A person who has direction over another either in a working, academic or residential relationship. Members of the University community will in some instances be a supervisor in one capacity and take directions in another, or may have different supervisors depending on the situation.

The University Mediator

A staff member appointed to mediate by the University.

The University Proctor

A staff member authorised to deal with minor offences of the Code of Student Conduct (see the Discipline Regulations in the University Calendar).

Content

1.The Policy

General Principles of the Policy are:

1. that all members of the University community will be courteous, honest, fair, timely and ethical in their dealings with one another;
2. that no member of the University community will unduly interfere with the living, studying or working environment of any other member of the University community while on campus, on a field trip, a clinical placement or participating in an activity associated with the University;
3. that services, benefits, opportunities and facilities provided by the University will be offered without discrimination, as defined in the Policy;
4. that a member of the University community who has authority over other members of the community, will use that authority, both on and off campus, solely for the purposes stated and implied in University policies and with regard to the aims and purpose of the University;
5. Unethical behaviour includes, but is not limited to, sexual harassment, racial harassment, discrimination, personal harassment and bullying, the abuse of supervisory authority and failing to declare or manage a conflict of interest. This kind of conduct is described in Appendix 2: Breaches of General Principles;
6. Staff are expected to maintain professional relationships with each other and with students.  Depending on the circumstances, a staff member having an intimate personal relationship with a student may be viewed as unethical.  Further information about this is described in Appendix 1: Breaches of General Principles;
7. The University is committed to ensuring the right to institute or participate in any process under this policy and to resolving any complaint in a timely and confidential manner.

2. Processes for action under the Policy

a. Informal Process

The University supports and encourages the use of informal processes to resolve concerns wherever that is appropriate. Informal processes include the following options:

• Individuals addressing an issue themselves (with or without support);
• Management or third party involvement;
• Mediation.

More details about these processes may be found in Appendix 2.

i. Advice and Support

Where a member of the University community has concerns about behaviour that may be inconsistent with the Ethical Behaviour Policy, the following are available to discuss the avenues for resolution of the concern and/or to support those involved through the process

• a contact person;
• the University Mediator;
• a person's manager / Head of Department or senior colleague;
• Otago University Students' Association (OUSA);
• Student Health Services;
• Māori Centre or Pacific Islands Centre;
• Human Resources;
• a Union;
• Employee Assistance Programme (EAP).

More details may be found in Appendix 2.

b. Formal Process

Where informal processes have not resolved a concern or where they are inappropriate:

1. If the person complained about is a student, the person complaining may make a formal written complaint to the University Proctor requesting that consideration be given to the matter being dealt with under the Code of Student Conduct.
2. If the person complained about is not a student, the person complaining may make a formal written complaint to the Director of Human Resources.
3. Where appropriate the University may accept complaints from third parties and/or may pursue investigations of its own if it becomes aware of alleged inappropriate behaviour.

c. Procedural Advice

If there is uncertainty about the process to be followed, the University Registrar may be contacted for advice.

More details and procedural requirements may be found in Appendix 3: Formal Complaints.

3. Additional Processes

Depending on the nature of the issue other options are available, including the following:

1. In the case of alleged criminal behaviour, a complaint may be made to the Police.
2. In the case of alleged discrimination, sexual harassment, or racial harassment a complaint may be made to the Human Rights Commission under the Human Rights Act 2003.
3. In the case of employment-related problems a staff member may take action under their employment agreement or the Employment Relations Act 2000.

4. Protection of Parties to a Complaint

1. When someone has either made a complaint or been the subject of a complaint they must use all reasonable efforts to avoid action which actually or potentially causes disadvantage to or creates a hostile environment for the other person.
2. If someone fears disadvantage or hostility they may:
   1. request their immediate supervisor to put in place appropriate arrangements to provide a safe working environment for all parties. If the supervisor is the person complained about, a request should be made to that person's immediate supervisor or to their Divisional Human Resources Manager; or
   2. approach a union or OUSA or other support network to facilitate the putting in place of an appropriate arrangement to provide a safe working environment for all parties;
   3. make a formal complaint about the situation to the Director of Human Resources or to the University Proctor (if the person complained about is a student.

5. Confidentiality

Subject to the requirements of the investigation or any legal requirements, everyone involved in a formal investigation or informal process has:

1. the right to have information they disclose kept confidential.
2. the duty to respect the rights of others to the maintenance of confidence.
3. the right to have any limits of confidentiality explained to them.

6. Support Persons

Anyone has the right to be accompanied by a support person at any stage of the processes under this policy.

Appendix 1: Breaches of General Principles

1. General Principles

The General Principles set out the standard of behaviour which is required and cover a wide range of situations.

2. Examples Of Breaches of General Principles

Without limiting the application of the general principles, the following are specific categories of non-tolerated behaviours.

a. Sexual Harassment

“Sexual harassment” has the meaning given to it in section 62 of the Human Rights Act 1993, which defines sexual harassment as:

1. the making of a request of any other person for sexual intercourse, sexual contact, or other form of sexual activity which contains an implied or overt promise of preferential treatment or an implied or overt threat of detrimental treatment; or
2. by the use of language (whether written or spoken) of a sexual nature, or of visual material of a sexual nature, or by physical behaviour of a sexual nature, to subject any other person to behaviour that:
   • is unwelcome or offensive to that person (whether or not that is conveyed to the person complained about); and
   • is either repeated, or of such a significant nature, that it has a detrimental effect on that person.
   Nothing in this section shall apply to the use or presentation of language or materials, which is reasonably required for bona fide educational purposes.

b. Racial Harassment

“Racial harassment” has the meaning given to it in section 63 of the Human Rights Act 1993, which defines racial harassment as the use of language (whether written or spoken), or visual material, or physical behaviour that:

1. expresses hostility against, or brings into contempt or ridicule, any other person on the ground of the colour, race, or ethnic or national origins of that person; and
2. is hurtful or offensive to that other person (whether or not that is conveyed to the person complained about); and
3. is either repeated, or of such a significant nature, that it has a detrimental effect on that other person.

Nothing in this section shall apply to the use or presentation of language or materials, which is reasonably required for bona fide educational purposes.

c. Discrimination

“Discrimination” means conduct which:

1. results or is likely to result in less favourable treatment, or creates or is likely to create a less favourable environment, for any person or group of people than for another person or group of people in the same or similar circumstances by reason of any of the prohibited grounds set out in section 21 of the Human Rights Act 1993; and

2. does not fall within any of the relevant exceptions in Part II of the Human Rights Act 1993.

   The prohibited grounds of discrimination, based on section 21 of the Human Rights Act 1993 are:

   • sex, including pregnancy and childbirth;
   • marital status;
   • religious belief;
   • ethical belief;
   • colour;
   • race;
   • ethnic or national origins, which includes nationality and citizenship;
   • disability;
   • age;
   • political opinion;
   • employment status;
   • family status;
   • sexual orientation and gender identity.

   Discrimination may arise from official statements, actions, omissions, decisions or policies as well as from informal or personal statements or conduct. It may also be indirect, that is, have the effect of treating someone differently even if the discrimination is not explicit.

   Actions by the University constituting affirmative actions and policies to assist or advance a particular group are not discrimination. These actions and policies will be made public to the University community.

d. Personal Harassment and Bullying

"Personal harassment" means any objectionable or offensive behaviour (expressed or implied) by a member of the University community in relation to another member of the University community, which:

1. intimidates, humiliates, undermines or dominates that other person;   or
2. involves the use of abusive and/or threatening language, verbal or physical threats or any form of   physical assault.

Personal harassment may occur as a result of a significant one-time incident or as a result of more minor incidents occurring over a period of time.

Bullying is a form of personal harassment which is especially characterised by persistent and offensive, abusive, intimidating, malicious or insulting behaviour (express or implied) which makes the recipient(s) feel upset, threatened, humiliated or vulnerable, undermines their self-confidence and/or causes them to suffer stress. It may include emotional abuse, isolation, economic abuse, abuse of authority, denying and blaming, coercion and threats that create a risk to an individual's health and safety.

e. Abuse of Supervisory Authority

“Abuse of supervisory authority” means conduct (express or implied), by a supervisor in relation to another member of the University community that exceeds the normal authority of a supervisor and which:

1. intimidates, humiliates or undermines that other person by belittling them, or excessively, destructively or inappropriately criticising or reprimanding them, or excessively scrutinising their work; or
2. makes demands that are unreasonable or outside that other person's role or activity within the University; or
3. makes a demand to perform an action that is in breach of the principles of any policy of the University.

For the purpose of this section, an academic will be deemed to have supervisory authority over the students enrolled in her/his class.

An abuse of supervisory authority may occur in situations where a decision on benefits or opportunities of an academic, employment or other nature, has been influenced by considerations which are, or should be, irrelevant to the decision. This is considered to be a conflict of interest and is addressed in 3 below.

f. Unethical Intimate Personal Relationships

The University strongly discourages, and staff should avoid entering into, an intimate personal relationship with any student of the University, particularly a student for whom they have responsibility or with whom they have involvement through any kind of University activity.

An intimate personal relationship between a member of staff and a student seriously risks taking advantage of the intrinsic trust, power and status differential implicit in the staff-to-student relationship.

Intimate personal relationships are relationships characterised by a significant level of intimacy between the participants and include situations involving sexual activity of any kind.

Relevant factors for the University to consider when determining whether a staff member has behaved unethically/inappropriately by entering into an intimate personal relationship with a student include, but are not limited to, the following:

• Whether there is an imbalance of power or status
• If the relationship is detrimental to the student
• Risks unacceptable disruption to the student's study or work or their living environment
• Undermines the trust and confidence the University has in the staff member

In addition, the University will consider whether the staff member gave careful, mature and sober consideration to all relevant ethical considerations, including those listed above, before and during the relationship.

If a staff member enters into a relationship with a student he/she is encouraged to seek advice immediately from the following people:

• Mediator
• Human Resources Manager or Advisor
• Union

Students are encouraged to seek advice from the following:

• OUSA Support Staff
• Mediator

If a relationship is considered to be not unethical but creates a conflict of interest under the provisions of the following clause, the staff member must follow the procedures set out in 4 below.

Similar considerations may arise in relationships between staff members, particularly where there is an imbalance of power or status between the staff members involved.  The University may, after considering all relevant factors, determine a staff member has behaved unethically/inappropriately through involvement in an intimate personal relationship with another member of staff.

3. Conflicts of Interest

A conflict of interest may arise in a range of situations where the personal, academic or financial interests of an individual improperly affect or could improperly affect the carrying out of that person's or another person's duties within the University. The conflict of interest is inherent within the existence of particular relationships, whether staff-staff or staff-student, and is not dependent upon any specific action. In settings where there is a difference in power between people, such as staff and students at the University, the potential for harm is greater and special care needs to be taken to avoid conflicts of interest.

Failure to disclose a conflict of interest, in accordance with this policy, may be considered a disciplinary matter by the University.

a. Conflicts of Interest arising between Staff members

Situations may occur where staff members are working with family members or persons with whom they have a close personal relationships. The existence of close or intimate personal relationships with a member of staff should not constitute a bar to the employment or promotion of any individual. Where such relationships exist between staff members or with prospective staff members there may be situations where there is the potential to create a conflict of interest, such as in supervisory relationships and employment-related decisions. The staff member must follow the procedures set out in 4 below.

b. Conflicts of interest arising between Staff and students.

Any member of staff may find themselves in a situation where a family or personal relationship with a student gives rise to a conflict of interest. A family/personal relationship between a staff member and student has the potential for, or could be perceived as, compromising the fundamental duties inherent in teaching and learning. Staff members have a responsibility to students to assess their work fairly, objectively and consistently across the candidature for their particular subject/course. It follows that members of staff should not be involved in supervision or assessment of students with whom they have a family, or personal relationship. In any such situation the staff member must follow the procedures set out in 4 below.

4. Procedures for dealing with conflict of interest and potential conflict of interest.

1. Staff members must inform, verbally and in writing, the person to whom they normally report, (e.g. Head of Department, Supervisor) if a conflict of interest arises or where they are uncertain as to whether a particular situation gives rise to a conflict of interest.
2. If the person to whom they normally report is also potentially involved in the conflict of interest, the staff member must report to that person's manager.
3. The person to whom the matter is reported must ensure that processes are put in place to manage or remove the conflict of interest in the best way possible and in a transparent manner, and the staff member will be an active participant in the process. This includes written documentation of the processes put in place.
4. All reasonable steps must be taken to advise those who may be affected by the measures put in place.
5. After arrangements have been made to manage or remove a conflict of interest, the person to whom such a staff member would normally report (or this person's manager) is responsible for the ongoing monitoring of the situation. The purpose of such monitoring is to ensure the wellbeing of those involved and to ensure any measures put in place are not unduly affecting the work of others.

For detail and procedures relating to other conflicts of interest, refer to the University of Otago Conflicts of Interest Policy.

Appendix 2: Informal Processes

The University encourages informal resolution of problems where possible. In some circumstances informal processes will be inappropriate because of the seriousness of the issues or incidents concerned and it is appropriate to move directly to the formal process. A range of people, including a contact person, a mediator, a Human Resources Advisor or a supervisor, can help a person decide whether the matter is best addressed by an informal or a formal process.

Some of the more common informal processes are described below.

a. Individuals Addressing the Issue Themselves

Where matters are less serious people should consider resolving an issue with the other person. This would involve the person raising their concerns directly with the other person, either with or without a support person present.

The people under Section 2 (Processes for Action under the Policy: Advice and Support) are available to provide advice, support and coaching to assist people who wish to pursue this resolution process.

b. Management or Third Party Involvement

Where a person does not wish to address the issue directly themselves, or where this would not be appropriate, they may ask the person to whom they report to intervene or they may ask a third party to broach the issue with the person on their behalf. It would be normal for either of these processes to be followed by a direct discussion between the parties to re-establish a constructive working relationship.

c. Mediation

How is mediation used?

Mediation is used in a variety of situations in the University.

1. The University employs a mediator who is available to mediate all types of situations, as requested by staff and students.
2. If everyone is willing, mediation is one way that problems can be informally resolved. This option can be accessed by self-referral, via a contact person, or by referral from a manager or a head of department/school/service or by contacting the University Mediator.
3. Any member of the University community may approach the University Mediator to request mediation for matters outside the Policy. If the University Mediator considers that the matter is suitable for mediation and the other person agrees to participate, mediation can be used to help resolve a variety of concerns.
4. Because mediation is confidential, only aggregated general statistical information, such as the number of people using the service, whether they are staff or students, and general categories of the issues being dealt with are reported by the University Mediator to the University.

What is mediation?

Mediation is a conversation between people with the help of the mediator; it is an informal and voluntary process, in which the participants identify the issues, generate options and consider alternatives in order to reach a mutually acceptable solution. It is confidential and non-disciplinary. Participants enter the process willingly and may withdraw at any time.

The participants to the mediation retain all decision-making power. The mediator does not act as an advocate, a support person or a decision-maker but as a neutral facilitator. Mediation is a non-judgmental process that does not result in a winner and a loser, but in an outcome which is acceptable to both participants.

All things said and any notes written in mediation are confidential. This ensures that the participants can trust the process as an opportunity to resolve issues in an open, frank and honest manner. They decide whether any agreement they reach is made available and, if so, to whom. Sometimes even the fact that mediation is occurring or has occurred will be kept private.

Support people may be present at the mediation.

What are the advantages of mediation?

Mediation is confidential and private and can often provide the quickest and easiest way for people to sort out their differences. It is non-adversarial and promotes a co-operative problem solving approach. It provides participants with an equal opportunity to have their say in a non-threatening environment.

Mediation often produces the best outcome because the issues and concerns can be fully canvassed and the participants themselves determine the outcome. This helps to repair the working relationships that have broken down in a conflict. The process is future-focused with the aim being to find creative ways to meet the real needs and interests of everyone involved.

It can be very helpful to talk with a mediator confidentially about the appropriateness of mediation and to weigh up the alternatives to mediation. Mediation is most successful when people use it earlier rather than later, before their differences have become entrenched, but it can help even with long-standing and intractable problems.

More information on mediation is available at http://www.otago.ac.nz/mediation/

Appendix 3: Formal Complaints

1. Options for Formal Complaint

The options available under the Ethical Behaviour Policy Formal Complaint Process are:

1. If the person complained about is a student, the person complaining may make a formal written complaint to the University Proctor requesting that consideration be given to the matter being dealt with under the Code of Student Conduct.
2. If the person complained about is not a student, the person complaining may make a formal written complaint to the Director of Human Resources.
3. Where appropriate the University may accept complaints from third parties and/or may pursue investigations of its own if it becomes aware of alleged inappropriate behaviour.

2. Confidentiality

Subject to the requirements of the investigation or any legal disclosure requirements, everyone involved in a formal or informal investigation has:

1. the right to have information they disclose kept confidential;
2. the duty to respect the rights of others to the maintenance of confidence;
3. the right to have any limits of confidentiality explained to them.

3. Ethical Behaviour Policy Formal Complaint Process

a. When the person complained about is a Student

A written complaint may be made to the University Proctor.

The procedure and potential outcomes following a formal written complaint against a student are those established by the Code of Student Conduct as adopted by Council and found in the University Calendar.

b. When the Person complained about is not a Student

When someone chooses not to use informal processes or use of informal processes has failed to resolve the problem, they may make a formal written complaint to the Director of Human Resources.

The formal written complaint must be signed and dated by the person complaining and should contain the following:

1. the name of the person complained about as well as sufficient details outlining the issue complained about;
2. the name of any person who may have witnessed the breach of the policy or to whom the complaint was first reported;
3. the outcomes which the complainant believes would be appropriate to resolve the matter;
4. information on whether any measures to protect the person complaining are necessary.

The failure to include information in the formal written complaint does not nullify the complaint. The person complaining shall be available for an interview for clarification of the formal written complaint if considered necessary by the person receiving the complaint.

There is no time limit for the making of a formal complaint, although long delays may inhibit the ability of people to recall facts accurately and may limit the ability of the investigator to reach any conclusions.

If it is considered that every reasonable effort to settle the matter informally has not occurred, then if appropriate, the people involved may be encouraged that this occurs before a formal proceeding commences.

Upon receipt of a formal complaint, or where the University considers that there might be an issue that needs to be investigated, there are two options:

1. a preliminary investigation may be carried out to assess whether or not there is a prima facie case to be investigated, or
2. an investigator may be appointed to investigate the matters raised in the complaint. An investigator is a person with delegated authority from the Director of Human Resources appointed to investigate a formal complaint.

In certain circumstances the Director of Human Resources may consider that it is necessary to suspend the person complained about for the duration of the investigation.

The investigator of the complaint must respect the principles of natural justice which include the right of the person complained about:

1. to be advised of enough details of the formal complaint and the investigation to allow them to make an informed response;
2. to be given an opportunity to provide an explanation and make representations, including having their witnesses heard;
3. to be supported by or represented by the person of their choice; and
4. to have the matter assessed by an impartial person.

The investigator's role is to investigate the complaint impartially and the investigator is required to:

1. provide the person complained about with a letter informing them that a complaint has been received, giving details of the allegations and defining the process of the investigation;
2. receive any comments, either in person or in writing, to that letter;
3. carry out such investigation as is necessary;
4. advise the person complained about of their preliminary views as to those findings and as to the penalty, if any;
5. receive and consider representations on those preliminary views;
6. make and advise the person complained about of the final decision on the findings and as to the penalty, if any;
7. advise the person complaining in confidence that a final decision has been made and give appropriate details.

Related policies, procedures and forms

• Employment Relations Act 2000
• Human Rights Act 1993
• Conflicts of Interest Policy (financial and employment matters)
• Responsible Practice in Research – Code of Conduct
• Protected Disclosures Policy
• The Tertiary and International Learners Code of Practice

Contact for further information

If you have any queries regarding the content of this policy or need further clarification, contact:

Kevin Seales
The Director
Human Resources
Email kevin.seales@otago.ac.nz
Tel +64 3 479 8267