Appendix III (a)

CITY UNIVERSITY OF HONG KONG

 

Procedures for Handling

Formal Sexual Harassment Complaints

1.          One of the following designated complaint recipients shall become the Subject Officer of the case:

(a)        the Director of Human Resources (or nominee) when the alleged harasser is a staff member; or

(b)       the Dean of Students (or nominee) when the alleged harasser is a student at or below undergraduate level; or

(c)        the Dean of Graduate Studies (or nominee) when the alleged harasser is a student at postgraduate level.

The nominee shall be chosen from Members of the Committee Against Sexual Harassment (CASH). In appropriate circumstances or at the request of the complainant, the gender of the delegated Subject Officer should be taken into consideration.

2.          On receiving the sexual harassment complaint, the Subject Officer shall acknowledge a written complaint in writing within two weeks of receipt. In case of an oral complaint, the Subject Officer shall record it in writing and confirm the record with the complainant as soon as possible, and in any case within two weeks.

3.          The Subject Officer shall report the complaint to the Chairperson of CASH (with a copy to the President).

4.          If, upon receipt of the complaint or at any time during the course of investigation, the Subject Officer discovers that the complaint is of a criminal nature, e.g. the substance of the complaint may amount to an indecent assault, the complainant will be informed of his/her right to report to the Police. Investigation should be suspended once referral has been made to the Police and the Subject Officer should inform the President and the Chairperson of CASH immediately.

5.          The Subject Officer should maintain case files and records of the complaints received to facilitate the monitoring of progress in processing the complaints. All such files and records should be accorded confidential status and passed to the Secretary of CASH on completion of the procedures for retention.

6.          The Subject Officer shall form an Investigation Panel (Panel) to carry out investigations. The Panel shall comprise the Subject Officer or his or her nominee as the Chairperson and at least two more Members chosen from CASH by the Subject Officer. In appropriate circumstances and in consultation with the Chairperson of CASH, the Subject Officer has the authority to appoint other staff members, instead of Members from CASH, to serve as Members of the Panel. A relevant student representative or other persons may be co-opted on the Panel as decided by the Subject Officer in consultation with the Chairperson of CASH. The Subject Officer shall nominate a person to be the Secretary of the Investigation Panel. A fair distribution of members in both genders should be observed as far as practicable. No members of a Panel shall be from the same department/unit as the complainant/alleged harasser or have any direct working or educational relationship with the complainant/alleged harasser.

7.          The Investigation Panel shall carry out the investigations as soon as practicable in accordance with the principles set out in the Sexual Harassment Policy and Procedures and notify the alleged harasser of the carrying out of the investigations. The investigation should include the following:

(a)        Interviewing the complainant

The nature of the details of the complaint should be ascertained. To facilitate subsequent investigations, a written statement should be taken which should be signed and confirmed as correct by the complainant.

(b)       Interviewing the alleged harasser

Details of the allegations should be given in writing to the alleged harasser who should then be interviewed to give explanations or comments. The interview should be recorded in writing and signed and confirmed as correct by the alleged harasser.

(c)        Provisions during the interview

l   Given that cases of sexual harassment involve issues of a sensitive and embarrassing nature, both the complainant and the alleged harasser may need help and support during the interview. Under such circumstances, both parties may be accompanied by another person[5], who is a member (i.e. staff or student) of the University, throughout the proceedings.

l   Reasonable measures should be taken to avoid the complainant and the alleged harasser to appear in the same meeting as far as practicable.

l   Both parties have the right to give evidence in their preferred language and an interpreter will be provided by the Subject Officer.

l   The Secretary of the Investigation Panel shall maintain a record of proceedings as the Chairperson considers appropriate.

(d)       Interviewing witnesses

All interviews should be recorded in writing and signed and confirmed as correct by each witness.

(e)        Findings

l   Both parties must be given an opportunity to present their cases in detail and to comment on the allegations and responses made by the other party. The Investigation Panel will analyse the information and ascertain the facts of the case.

l   The level of evidence required will be based on the severity of the complaint and any decision taken should be based on the balance of probabilities.

l   In determining whether certain conduct constitutes sexual harassment, the entire record and the totality of the circumstances shall be considered.

8.          The investigation of a complaint by the Investigation Panel shall normally be completed and a reply issued to the complainant within two months after receipt of the complaint. If an investigation cannot be completed within two months, the Investigation Panel will send an interim reply to the complainant and the alleged harasser, informing them of the progress of the investigation. Any investigation which cannot be completed within three months should be drawn to the attention of the President and the Chairperson of CASH.

9.          If at any time during the investigation, the Investigation Panel discovers that the same complaint has been lodged with any statutory bodies or police, internal investigation shall be suspended. The Subject Officer should inform the President and the Chairperson of CASH. Internal investigation may resume upon conclusion of the external proceedings.

10.      It is the responsibility of the Investigation Panel to obtain and scrutinize all relevant information concerning the case to see whether an act of sexual harassment might have been committed. Where appropriate, the Investigation Panel should include in the report to the Chairperson of CASH a recommendation on whether consideration should be given to instituting disciplinary action against the staff/student member concerned.

11.      The investigation can be discontinued if the Investigation Panel is of the opinion that the complaint is frivolous, vexatious, misconceived or lacking substance; or if the complainant does not desire the investigation be conducted or continued. The complainant and the alleged harasser should be advised of the reasons for that decision.

12.      The Investigation Panel shall, upon the conclusion of the investigations and thereafter as soon as practicable, determine and conclude whether the complaint is established.

13.      Both the complainant and the alleged harasser should be informed whether the complaint has been established and the proposed action to be taken. If the complaint is not established, the reasons and the outcome of the investigation should be given to both the complainant and the alleged harasser.

14.      If the complaint is established, both the complainant and the alleged harasser should be given a period of one week to respond before the Investigation Panel reports the findings to the Chairperson of CASH (with a copy to the President). In the event that the complaint has been established, the Investigation Panel shall recommend to the Chairperson of CASH (with a copy to the President) that disciplinary action be pursued in accordance with the University’s Regulations Governing Staff Discipline or Code of Student Conduct and Disciplinary Procedure as appropriate.

15.      Upon receipt of the report and recommendation of the Investigation Panel, the Chairperson of CASH shall decide, normally within three weeks, whether to adopt the recommendation to take disciplinary action against the harasser. If the Chairperson of CASH should decide to recommend disciplinary action against the harasser, he/she shall write to the relevant authorities, providing the full report and recommendations, to take disciplinary action[6] as appropriate. All disciplinary action under the Regulations Governing Staff Discipline or Code of Student Conduct and Disciplinary Procedure shall apply.

16.      Both the complainant and the alleged harasser should be informed whether disciplinary action will be taken.

17.      If the complaint is not established and the complainant wants to appeal against such decision, the appeal should be submitted to the Chairperson of CASH in writing within three weeks after receiving the notification with full and complete details of the ground for the appeal. The Chairperson of CASH shall determine normally within three weeks whether to accept the appeal based on the grounds that:

l   new evidence has come to light which was not previously considered by the Investigation Panel; and/or

l   there is procedural irregularity in handling sexual harassment complaint.

18.      Should the Chairperson of CASH decide to accept the appeal, he/she shall appoint an Appeal Authority (comprising one or more person(s)) to review the appeal. The Appeal Authority shall review the case and make recommendation to the Chairperson of CASH as soon as practicable and normally within two months from the date the Appeal Authority is appointed.

19.      The Chairperson of CASH shall convey the decision to the appellant normally within three weeks after receiving the recommendation. If the complaint is not established, the decision of the Chairperson of CASH is final. In the event that the complaint is established and the Chairperson of CASH decides to adopt the recommendation to take disciplinary action against the harasser, he/she shall write to the relevant authorities, providing the full report and recommendations, to take disciplinary action as appropriate.

20.      If at the conclusion of an investigation or disciplinary proceedings, there is clear evidence to show that a complaint has been made in bad faith, disciplinary action may be taken against the staff/student member who made the malicious complaint.

21.      For appeal against disciplinary action taken, the appeal procedures applicable to the Regulations Governing Staff Discipline and Code of Student Conduct and Disciplinary Procedure shall apply.

22.      Whilst each party referred to in these procedures is expected to take all reasonable steps to comply with the time limits specified in this document, a failure to comply with one or more time limits (unless a material and culpable failure) will not in itself amount to the procedures being void or voidable.

23.      A flow chart showing the process is presented at the Appendix III (b).

Appendix III (b)

 

Flow Chart on Handling Formal Sexual Harassment Complaints

 

Note

1.     The Subject Officer will be the Director of Human Resources (or nominee) when the alleged harasser is a staff member; or the Dean of Students (or nominee) when the alleged harasser is a student at or below undergraduate level; or the Dean of Graduate Studies (or nominee) when the alleged harasser is a student at postgraduate level.

2. The Investigation Panel shall comprise the Subject Officer as Chairperson and at least 2 more Members from CASH. In appropriate circumstances and in consultation with the Chairperson of CASH, the Subject Officer has the authority to appoint other staff members, instead of Members from CASH, to serve as Members of the Panel. A relevant student representative or other persons may be co-opted on the Panel as decided by the Subject Officer in consultation with the Chairperson of CASH. The Subject Officer shall nominate a person to be the Secretary of the Investigation Panel.

[5] The accompanying person is to provide advice and moral support to the staff/student member concerned. He/she shall have no right to address the Investigation Panel. Notes-taking for personal use may be allowed in appropriate circumstances as determined by the Investigation Panel.

[6] According to the Regulations Governing Staff Discipline, the Provost or Vice-President or equivalent is the Responsible Authority for final disciplinary action. He/She may decide to take one or more of the courses of action set out below which are not meant to be exhaustive, or alternatively, he/she may form a Disciplinary Committee to assist and advise him/her in reviewing the case:

§  to issue a written warning to the staff member concerned;

§  to order the staff member concerned to indemnify the costs of the disciplinary process;

§  to order stoppage or deferment of salary increase which may otherwise be enjoyed by the staff member concerned;

§  to suspend or to forfeit the entitlement of the staff member concerned to one or more of the named fringe benefits which may otherwise be enjoyed by the staff member;

§  to vary the grade and/or terms of appointment of the staff member concerned with or without reduction or forfeiture of the privileges and/or benefits;

§  to dismiss the staff member concerned with or without reduction or forfeiture of the privileges and/or benefits.

 

According to the Code of Student Conduct and Disciplinary Procedure, penalties imposed by the Student Discipline Panel may consist of:

§  withholding a student’s eligibility for receipt of a scholarship, prize or financial award; or for inclusion on the Dean’s List, or to represent the University in any external activity, for a specified period of time;

§  exclusion from the use of University amenities/facilities for a specified period of time in excess of 8 weeks;

§  suspension from the University for a specified period of time;

§  expulsion from the University, which may include specification of a period within which a student may not be readmitted as a student of the University;

§  the withdrawal of an award already made; etc.