Procedure for Making and Dealing with Complaints of Prohibited Conduct

1. The primary purpose of the Code is to prevent those to whom it applies being subjected to any form of prohibited conduct by others with whom they must interact in the course of their service in the Defence Forces.

2. This can best be achieved by promoting acceptable standards of workplace behaviour and the realisations that all members of the Defence Forces, are entitled to a workplace free from any form of unacceptable behaviour.

3. It is, however, recognised that instances of prohibited conduct may arise from time-to-time. In such instances, this Code provides a means by which the person who complains of prohibited conduct can have access to an effective and expeditious means of obtaining redress. Engaging in prohibited conduct can also result in the imposition of sanctions under the relevant disciplinary process for the member of the Defence Forces as appropriate.

4. The mechanism for processing complaints of prohibited conduct is described at Paragraph 23.

5. Time limit for submitting complaints. A complaint of prohibited conduct involving sexual harassment, harassment, bullying, or victimisation must be made within six months from the date of the occurrence of the event giving rise to the complaint. Where the IGM is satisfied that a failure to present a complaint within that period is due to reasonable cause, the period may be extended by up to a further six months.

6. Except where an extension of time is allowed, a complaint submitted outside the six-month time period shall be inadmissible.

7. This is important as the passage of time can reduce or alter a person’s memory of an event and consequently affect the accuracy of reports and evidence. Furthermore, some of the persons involved may have moved on from the unit or station where the alleged act occurred making contact and the maintenance of confidentiality more difficult.

8. The time limits set out above are in line with those provided in various employment enactments.

9. Informal and Formal Approach. Complaints under this process can be dealt with at different levels:

a. An Informal Approach, where the complainant approaches the respondent directly, or with the assistance of a third party or Designated Contact Person (DCP).

i. Informal complaint resolution pathways will still be available to the complainant in the first instance. However, situations may arise when an informal resolution of a complaint may not be appropriate. Ultimately, commencing an informal process will not preclude the complainant from opting to have the complaint dealt with formally.

b. A Formal Approach, involving a written complaint and dealt with by the IGM through an administrative process.

(Note: A written complaint may be submitted via the online form, printed or in handwriting but must be signed by the complainant.)

10. At the lower end of seriousness a complaint may best be resolved in a private and conciliatory manner by using the informal approach. In these cases the complainant may not wish to make a written complaint but seek to resolve the issue with the respondent alone, or with the assistance or intervention of a third party. Should this approach fail then a written complaint may be made. A complainant, if they so wish, may make a formal written complaint in the first instance.

11. Third Party/Designated Contact Person (DCP). A third party can include any member of the Permanent Defence Force, someone with the trust and confidence of the complainant. An effective third party can help clarify if a complaint is warranted, advise on options and procedures or facilitate an informal settlement. A DCP is a member of the PDF of any rank who has been specifically trained for the role, who acts as a “third party” and who must be perceived to be acting as a neutral in any situation.

12. Mediation. Throughout this process there is provision for access, at any stage of the process and to all parties concerned, to mediation with a view to resolving the issue informally and at an early stage. Mediation can be initiated at any point in the process, but only with the consent of both parties.

13. One of the main objectives of this procedure is to ensure that the IGM and the Defence Forces make every reasonable effort to resolve and address allegations of prohibited conduct. As an alternative to a comprehensive investigation, all parties are strongly encouraged to engage in the mediation process. This is because the primary aim of mediation is to achieve a swift and confidential resolution to the dispute, while minimising the amount of conflict and tension that may be experienced by the parties involved.

14. It is important to emphasise that mediation is a voluntary process that can be highly efficient in resolving disputes.

15. Interim Grievance Manager (IGM). A written formal complaint will be submitted by a complainant directly to the IGM.

16. The IGM will receive a complaint, directly from a complainant, alleging prohibited conduct as defined by the code.

17. Confidentiality, discretion and due regard for the right to privacy will be maintained by all concerned where a complaint is being dealt with at whatever level. Complaints of this nature can be stressful for both the complainant and the respondent and also for witnesses. Resolution can be more easily achieved when confidentiality, discretion and the individual’s right to privacy are maintained.

18. Personnel shall be protected from intimidation or victimisation for making a complaint or assisting in an investigation. Victimising a person for making a complaint or for coming forward as a witness will be treated as a disciplinary matter.

19. Where a complaint is made in good faith and is not upheld, a complainant will be entitled to protection from any form of victimisation for having made the complaint.

20. However, if a complaint on investigation is determined to have been taken with malicious or vexatious intent, appropriate disciplinary action could be initiated against the complainant. This provision should not deter personnel from forwarding genuine complaints.

21. A complainant and the respondent will be provided with the necessary assistance and support as far as practicable. The complainant and the respondent may, if they so wish, be accompanied at initial meetings or investigations of the complaint by a colleague or member of a recognised representative body not acting in a legal or Representative Association capacity. Such person would normally be a colleague or member of a recognised representative body with whom they are comfortable who would provide moral support and where it assists the process speak on their behalf.

22. Complaints of prohibited conduct should, where practicable, be resolved by initiating action at the lowest level possible. Accordingly, a complainant, who considers that they have been subjected to such behaviour should:

a. Endeavour to resolve the incident by making clear to the offending person that the behaviour is offensive and unwelcome. (It may be the case that the offending person does not realise the effect of their behaviour).

b. Keep a record of any further incidents as they happen and request witnesses, if any, to note them also.

c. Endeavour to resolve the incident informally by seeking the assistance of a third party, DCP, or Personnel Support Services (PSS). In any such informal intervention it should be made clear to the respondent that any explanation offered will not be subsequently used against them in the course of any form of investigation.

d. If the behaviour persists, precede with the Formal Approach by reporting the matter in writing to the IGM.

23. A person who wishes to pursue a formal complaint in the first instance or who wishes to proceed with a formal complaint, the informal approach having failed, should make their complaint directly and in writing to the IGM. The following procedure will apply:

a. The written complaint can be submitted via the online form, email or by post addressed to the IGM and marked “CONFIDENTIAL”.

b. If a person feels they may have a difficulty in writing their complaint, they can request assistance from the liaison officer in the office of the IGM.

c. Written complaints should contain:

i. Details of the person or persons against whom the complaint is being made.

ii. Full details of the alleged act or acts constituting the behaviour complained of including dates, times and places.

iii. Details of any informal action taken to resolve the complaint.

iv. An indication of what would satisfactorily resolve the complaint.

24. A written complaint will be acknowledged to the complainant within 3 – 5 days of being received.

25. The IGM will carry out a preliminary examination of the complaint to make a decision regarding the admissibility of the complaint and/or the most appropriate action to take (usually within 3 – 4 weeks).

26. Based on the preliminary examination, the IGM will consider the following:

a. Where it appears that a complaint constitutes a criminal offence, the complainant will be advised that the most appropriate course is to refer the matter to AGS.

b. Whether informal resolution / mediation options are warranted; or

c. The complaint needs to be formally investigated.

27. Where the subject matter of a complaint indicates that a sexual offence may have been committed the IGM will forward the case to the Chief of Staff for transmission to the AGS in accordance with the Defence Forces’ procedures.

28. Where the IGM decides to deal with the complaint by way of formal investigation they will:

a. Inform both parties of the decision and advise them when the matter will be investigated.

b. Provide the respondent with a copy of the complaint.

c. Recommend measures as they consider appropriate to the relevant Commanding Officer to ensure that the behaviour complained of cannot continue while the complaint is being investigated.

d. Advise the parties of the need for confidentiality and caution against victimisation.

e. Draft the Terms of Reference for the purposes of commissioning the investigation, which will be discussed with the complainant.

f. Take steps to assign an appropriate person to conduct the investigation of the complaint (may take up to 4 weeks for appointment to take place).

29. The purpose of the investigation is to establish the facts which will be set out in a report to the IGM with the timeframe prescribed in the Terms of Reference (normally within 3 months).

30. Where an investigation surpasses the timeframe prescribed in the Terms of Reference, the investigator will keep both parties updated on the progress of the investigation on a reasonable interval basis.

31. When investigating the complaint the investigator will, in accordance with the rules of natural justice, proceed as follows:

a. The full details of the complaint will be provided to the respondent who will be invited to examine the complaint, consult with others, and given reasonable time to submit a written response to the allegations - fourteen (14) days in most cases should be sufficient.

b. The complainant and the respondent may be provided with the opportunity of stating their case.

c. The respondent may not be ordered to respond to the allegations. However, they will be informed that inferences may be drawn by the IGM from the absence of a response.

d. Statements will be taken from any reasonably available witnesses. Such statements, which will be documented, may be presented verbally or in writing. The investigator will interview such witnesses as they deem necessary and parties may be asked to furnish the investigator with written submissions.

e. Any response made by the respondent will in turn be made known to the complainant, who may submit a reply.

32. The investigator will circulate their report (excluding findings) to the complainant and the respondent and allow 5 days for fact checking. The investigator will then return the final investigation report to the IGM.

33. The IGM will consider the findings of the investigator’s report and determine whether any further action is required.

34. Based on their final determination, the IGM may, where considered appropriate, refer the matter to the Chief of Staff and recommend that it be dealt with appropriately.

35. Respondent. A respondent will be provided with every opportunity to prepare and state their case. However, failure to co-operate within the timelines prescribed will not prevent the investigation proceeding to finality and will be noted in the investigator’s report.

36. Witnesses. Any member of the Defence Forces that the investigator believes has relevant evidence to give should be required to co-operate.

37. In the event of non-compliance with an investigation, the IGM will note such non co-operation in any investigation reports forwarded to the Chief of Staff at the end of the investigation process.

38. The report, having been adopted by the IGM, will be forwarded to both parties together with any recommendations. The IGM will inform the Chief of Staff as to the circumstances of the complaint including any recommendations or advise that no further action is required.

39. The IGM procedure is without prejudice to the exercise of existing rights of members to:

a. Make a complaint under Administrative Instruction 7: Chapter 1: The Defence Forces Policy and Procedures dealing with Sexual Harassment, Harassment and Bullying.

b. Make a complaint under the Redress of Wrongs Procedure under Section 114 (1) and (2) of the Defence Act 1954 (Administrative Instruction 7: Chapter 2 (Redress of Wrongs) – see 10 below re the WRC.

c. Bring a complaint directly to the Ombudsman for the Defence Forces under Section 6 of the Ombudsman (Defence Forces) Act 2004.

40. The IGM procedure will not be available to complainants where any of the above referenced statutory processes have already been initiated (and have not been discontinued) or completed.