Complaint Procedures

Informal Resolution

(a)

Staff members or students who believe that they have been subject to any form of discrimination, harassment or vilification should act promptly. They should approach their immediate supervisor, unit head, departmental administrator or an advisor/resource person for help in achieving an informal resolution of the matter as soon as reasonably practicable.

(b)

If it is not possible to resolve the matter informally to their satisfaction, the staff members or students concerned may contact the responsible officer at the Diversity and Inclusion Office (DIO), i.e. Committee Secretary (CS) of the Committee Against Discrimination and Sexual Harassment (CADSH), for advice and assistance. The CS of CADSH shall make an initial assessment of the situation, based on the information provided, to determine whether it is a possible discrimination or harassment case. At this stage, the staff members or students concerned do not need to submit a written complaint. A flow chart on handling enquiries and complaints on discrimination, harassment and vilification is at the Attachment.

(c)

If it is determined that the situation is not a possible discrimination, harassment or vilification case, the case will be dismissed under these Procedures. The CS shall inform the staff or students concerned of the decision and the reason behind. If it is determined that there is a possible discrimination, harassment or vilification case under the scope as set out in paragraph B1, the CS shall inform the staff and students concerned of the available options. If the case is not under the scope of these Procedures, the CS shall, in consultation with the Director of DIO, refer the case to relevant departments/units for handling, depending on categories of the matter. Wherever deemed appropriate, the CS shall act as a coordinator to inform the staff or students concerned of the progress of the case. Requests from staff members or students will normally be handled within 10 working days.

(d)

For cases to be handled under these Procedures, the CS shall attempt, and if appropriate, to resolve the complaint informally with the consent of the complainant. The CS shall address the complainant’s concern, understand the facts and nature of the complaint and offer proper assistance, including counselling to the individual concerned. The CS, where appropriate, shall provide the complainant with information about the Policy and the complaint procedures as well as options for dealing with the complaint and shall communicate with the respondent the allegations made in the complaint and, where appropriate, take appropriate preventive or remedial measures to address the situation.

Formal Complaint

2.1)

Lodge a Complaint

(a)

If the informal process of resolving the matter fails, or if the complainant decides not to attempt any informal resolution, the complainant may make a formal complaint by completing a complaint form to the Panel Against Discrimination and Sexual Harassment (PADSH), normally within 6 months from the time the complainant knew or should have known of an alleged act.

(b)

Upon receipt of a written complaint, the CS shall undertake a preliminary inquiry into the complaint in order to determine whether there is prima facie evidence that any staff member or student may have engaged in discrimination, harassment or vilification. The CS may interview the complainant and the respondent to gather more information, as appropriate.

(c)

The CS shall submit a written report of the preliminary inquiry to the Panel Convenor for consideration, normally within 4 weeks after receipt of the written complaint.

(d)

The Panel Convenor may take appropriate actions including:

(i)

Referring the complaint to the CS of CADSH for conducting a conciliation with the consent of the parties concerned;

(ii)

Referring the complaint to PADSH for an investigation;

(iii)

Referring the matter to a relevant outside body, e.g. a law enforcement agency;

(iv)

Taking other appropriate actions to resolve the complaint including referring the matter to the relevant authorities for handling in accordance with the existing University policies and procedures (e.g. Procedure for Handling Serious Misconduct, Grievance Procedures for University Employees, Procedures for Dealing with Student Complaints, Policy Against Sexual Harassment, etc.); or

(v)

Dismissing the complaint.

2.2)

Conciliation

(a)

Conciliation is a voluntary process and will be conducted only where both the complainants and the respondents agree to conciliation. No legal rights or remedies are forfeited by entering into conciliation. If conciliation fails to reach a settlement, the complainants can continue to enforce their rights.

(b)

The CS or a conciliator acceptable to both parties will normally be appointed to conduct the conciliation. If necessary, a staff member with relevant expertise or background in the field of discrimination, harassment or vilification will be invited to join the CS or the conciliator to assist in the conciliation. The conciliation interviews with the complainant and the respondent will be conducted either together or separately.

(c)

If a settlement can be reached during the conciliation, the parties may enter into a legally binding agreement to record the terms of settlement. The CS or conciliator will help the parties identify issues, explore possible ways to resolve the dispute, assist the parties in reaching a mutually agreed resolution, and putting an agreement in writing.

(d)

The conciliation should normally be completed within 30 working days from the date of the first conciliation meeting. The time limit for conciliation may be extended by the Panel Convenor on reasonable grounds and with the agreement of both parties.

(e)

The CS or conciliator will not monitor the performance of the agreement. It is the responsibility of the parties concerned to abide by the agreement. Either party may take action for a breach of the conciliation agreement by the other party.

(f)

If either party does not succeed in resolving the situation through conciliation or decides to stop the conciliation, the complainant may pursue the case through formal investigation. The complainant should make a written request for a formal investigation within 30 working days after conciliation has been completed.

2.3)

Formal Investigation

2.3.1)

Investigation

(a)

Upon receipt of a written request, PADSH will conduct a full and impartial investigation. At least two panelists of different gender shall be appointed by the Panel Convenor to investigate a complaint (“the Investigation Team”). Normally the investigators with appropriate training and relevant expertise or background in the field of discrimination, harassment and vilification will be appointed, and will not be a member of any faculty/department/unit in which either party is concerned. The Investigation Team shall normally be formed within 10 working days of receipt of the written complaint.

(b)

Persons who have an actual or potential conflict of interest in the complaint shall declare their interest and shall not be involved in related investigation.

(c)

Under special circumstance as deemed appropriate by the Panel Convenor, a non-staff Council member, an external member or a student representative may be invited to join the Investigation Team to assist in the investigation and secure the confidence of the parties. The CS of CADSH will act as Secretary of the Investigation Team.

(d)

Either the complainant or the respondent may object to the composition of the Investigation Team. The complainant and the respondent shall submit their grounds for the objection to the Panel Convenor within 5 working days after being notified of the composition of the Investigation Team. The Panel Convenor shall consider the grounds for the objection, and, if it deems appropriate to replace the panelist who is the subject of the objection, shall appoint another panelist to the Investigation Team. Investigation should normally be completed within 80 working days from the date of the set-up of an Investigation Team.

(e)

In the course of the investigation:

(i)

The Panel Convenor will notify the complainant and the respondent that investigation will commence. The respondent will also be given a copy of the complaint letter together with other relevant material the Investigation Team has, and will be provided with an opportunity to respond to the complaint in writing. If the respondent wishes to submit a written statement in response to the allegation(s) made by the complainant, the respondent should submit a written response at least 5 working days before the start of the investigation. A copy of the written response will be provided to the Investigation Team and the complainant.

(ii)

The Secretary will ascertain that both the complainant and the respondent understand the procedures concerned. The investigation shall be conducted sensitively, fairly and expeditiously, with due attention to natural justice.

(iii)

The Investigation Team will interview the complainant and the respondent separately. The complainant should normally be interviewed first. If necessary, witnesses and any other parties concerned will also be interviewed individually in conformance with the privacy and confidentiality laws. Documents and/or evidence may be produced and reviewed.

(iv)

Any individual attending an interview may be accompanied by one person other than a legal representative, subject to the approval of the Investigation Team. A witness in the case is not a suitable accompanying person. Such a request must be submitted in writing in advance and set out the reasons for requesting an accompanying person together with the name and occupation of the individual proposed for the Investigation Team’s consideration. The Investigation Team’s decision on such a request is final. If the request is granted, the accompanying person will not be entitled to address the Investigation Team and shall sign a declaration form agreeing to keep the interview confidential in compliance with the requirements of the Personal Data (Privacy) Ordinance.

(v)

At the conclusion of the investigation, the Investigation Team will submit a written fact-finding report to the Panel Convenor. The fact-finding report will cover the finding of facts and evidence, and a determination as to whether the complaint is established.

2.3.2)

Follow-up and Appeal Procedures

(a)

The Panel Convenor shall review the fact-finding report and notify the complainant and the respondent in writing of the fact-finding report within 15 working days after receipt of the fact-finding report.

(b)

If the finding of the Investigation Team is that the complaint is established, the respondent will have the right to submit an appeal to the Panel Convenor. If the finding of the Investigation Team is that the complaint is not established, the complainant will have the right to submit an appeal to the Panel Convenor.

(c)

An appeal will be allowed only where the complainant or the respondent has new evidence and other information and material relevant to the case, or the complainant or the respondent can demonstrate that there is procedural unfairness in handling the complaint.

(d)

The complainant or the respondent should submit their written appeal to the Panel Convenor via the Secretary of the Investigation Team within 15 working days after being notified of the findings of the fact-finding report.

(e)

If the appeal is allowed, the Panel Convenor will establish an Ad Hoc Panel consisting of three members of the Panel who have not had any prior involvement in the case. The Ad Hoc Panel shall normally be formed within 10 working days of receipt of the written appeal. The Ad Hoc Panel shall review the fact-finding report, taking into account the written appeal stated in the complainant or the respondent’s grounds of appeal.

(f)

The Ad Hoc Panel may remit the report to the Investigation Team for clarification or further explanation. The Ad Hoc Panel may meet the complainant, the respondent or the relevant witnesses.

(g)

The Ad Hoc Panel may uphold, vary or overturn the finding of the Investigation Team. The Ad Hoc Panel’s decision on the facts will be final, and will be reported to the Panel Convenor within 30 working days after receipt of the written appeal from the complainant or the respondent.

(h)

The Panel Convenor shall submit a final report to the VP(A) within 15 working days after receipt of the decision of the Ad Hoc Panel.

(i)

If there is a finding of the complaint not established by the Investigation Team (and no appeal is submitted) or by the Ad Hoc Panel, the Panel Convenor shall submit a final report to the VP(A) for consideration.

(j)

If there is a finding of the complaint established by the Investigation Team (and no appeal is submitted) or by the Ad Hoc Panel, the Panel Convenor shall submit a final report with recommendations on the disposal of the case, e.g. whether or not the University should pursue formal actions against the respondent, to the VP(A) for consideration. A copy of the final report shall be forwarded to the Vice-Chancellor and President (VC) for information.

(k)

Upon receipt of the final report, the VP(A) shall decide to accept, vary or reject the recommendations in the final report and shall decide what actions, if any, should be taken. The VP(A) shall make a specific decision on the disposal of the case and convey in writing the decision to the complainant and the respondent within one month upon receipt of the final report. The letters issued shall be copied to the VC and the Panel Convenor.

(l)

The respondent may submit an appeal to the VC on specific decision made by the VP(A) within 15 working days upon being notified of the disposal of the case. The decision of the VC will be made as soon as practicable upon receipt of the appeal from the respondent.

(m)

The decision of the VC is final and will be conveyed in writing to the complainant and the respondent.

(n)

Upon the prior approval of the Panel Convenor, the Investigation Team or the Ad Hoc Panel (as the case may be) may, at any stage of the investigation and appeal, vary the Procedures to suit specific circumstances where appropriate.