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Memorial University of Newfoundland

  Memorial University of Newfoundland

Sexual Harassment and Sexual Assault

Approval Date: 2017-10-04

Effective Date: 2017-11-01

Review Date: 2021-10-04

Authority:

President, through the Sexual Harassment Advisor.

Principle

Memorial University of Newfoundland (The University) recognizes its ethical and legal responsibility to provide a work, learning and living environment that is free of all forms of Sexual Harassment, including Sexual Assault. Students, Faculty, and Staff at the University have the right to an environment that is free from sexual harassment and sexual assault.

Purpose

To protect Members of the University community by outlining provisions which aim to:

Scope

All members of the University community.

Definitions

Administrators — President, Vice-Presidents, Associate Vice-Presidents, Executive Directors, Directors, Deans or any other administrator not covered by a collective agreement or the University Guide for Non-Bargaining, Management and Professional, and Senior Administrative Management Employees.

Advisor — Sexual Harassment Advisor.

Bystander — Member of the University community who witnesses or is aware of an incident(s) of Sexual Harassment or Sexual Assault.

Complainant — A Member of the University community or Non-University Person who considers themselves to have been subjected to any/all forms of Sexual Harassment, and who has chosen to present with a Concern or Complaint against a Member of the University community in accordance with this Policy.

Complaint — Statement of allegation concerning any form of Sexual Harassment, by a Complainant seeking recourse pursuant to this Policy.

Concern — A situation which is of concern to a Complainant regarding any form of Sexual Harassment.

Consent — An active, direct, voluntary, unimpaired, on-going and conscious choice and agreement, expressed by word or conduct, between and among persons to engage in sexual activity. A person can only consent for themselves. Consent cannot be given or received while under the influence of alcohol or drugs, while incapacitated, unconscious or otherwise incapable of consenting. Consent cannot be induced by abusing a position of power, trust or authority. (See Section 3.0 Power Differences). Consent can be withdrawn at any time. In addition, silence is not consent.

Day(s) — A day, other than a Saturday or Sunday, statutory holiday, or other day on which the University is not open for administrative business. A day is inclusive of the day referenced.

Formal Resolution — A process in which an external investigator conducts an investigation with the goal of achieving a finding of whether or not Sexual Harassment or Sexual Assault has occurred. It is a means of resolution designed to address Concerns and Complaints of Sexual Harassment and does not require consent of the parties.

Frivolous — Devoid of merit.

Informal Resolution — Processes that are considered with the Advisor with the goal of achieving a resolution of Concerns and Complaints of Sexual Harassment. Some informal resolution options require consent of the parties. Informal resolutions may not be appropriate in all circumstances.

Legal Authorities — The legal entities, external to the University community, who have the responsibility and jurisdiction to uphold and enforce the law including the Criminal Code. R.S.C., 1985. c. C-46, as amended (The Criminal Code).

Mediation — A process, in which an external mediator facilitates a collaborative, controlled discussion between and with the agreement of a Complainant and Respondent in a setting that is deemed as safe as possible, with the goal of achieving an effective resolution. Mediation requires consent of both parties and may not be appropriate in all circumstances.

Members of the University Community — Any person who teaches, conducts research, studies or works at or under the auspices of the University and includes, without limitation, all employees, all students; and any other person(s) while they are acting on behalf of or at the request of the University. Students and employees include former students and employees while they were still members of the University if reported incidents of sexual harassment occurred within the time limits set out in this Policy.

Non-University Person — Includes but is not limited to volunteers, contractors, their employees and agents, vendors of goods and services and their employees and agents, and visitors to the University, who have an association with the University.

Power Differential — The real or perceived difference between or among Members of the University community in terms of authority, academic status, employment status, or citizenship status. Examples of power differentials may include but are not limited to: instructor or teaching assistant and student, supervisor and employee, graduate supervisor and graduate student.

President — Shall mean the President of Memorial University of Newfoundland or their delegate.

Respondent(s) — Member(s) of the University community or a Non-University person(s) whose reported conduct or comments are the subject of a Concern or Complaint.

Retaliation — Any threat of reprisal, attempt to intimidate or adverse behaviour or action, taken against a Member of the University community or Non-University person, in response to that initial person having:

Sexual Assault — Is a criminal offence under the Criminal Code R.S.C., 1985, c. C-46 of Canada. It is any type of unwanted sexual act characterized by the use of force, threat(s), or control of a person or carried out in circumstances where the person has not freely consented.  (See definition of Consent.)

Sexual Harassment — Conduct or comments of a sexually-oriented or gender-oriented nature based on gender expression, gender identity, sex or sexual orientation directed at a person or group of persons by another person or persons, who knows or ought reasonably to know that such conduct or comments are unwelcome or unwanted. It includes Sexual Assault and assisting in Sexual Harassment.Conduct or comments constitute sexual harassment when:

Examples of Sexual Harassment may include but are not limited to:Sexual Harassment may occur:Off-campus settings include, but are not limited to: field trips, athletic road trips, conferences or training events, and social functions whether or not they are University-related Activities.Online settings include, but are not limited to, social media, email, websites and any other form of electronic communications.Sexual Harassment is contrary to the Newfoundland and Labrador Human Rights Act, SNL 2010, CH-13.1, as amended (the "Human Rights Act") and may be contrary to the Criminal Code. The Human Rights Act, expressly prohibits discrimination on grounds including but not limited to sex, sexual orientation, gender identity and gender expression. Other statutes may apply depending upon the jurisdiction in which the incident(s) occurs.

Unit — Academic or administrative unit as defined in the University Calendar.

Unit Assessment — An independent third-party review of the work, study or research environment that seeks to gather information relating to issues of Sexual Harassment in the Unit and to identify causes and effects and to make recommendations with respect to the Unit.

University — Memorial University of Newfoundland.

University-related Activity — Any activity, event, program, organization or undertaking in which a Member of the University community participates which has a substantial connection to the University, or any activity, event, program, organization or undertaking involving Members of the University Community where the actions of those Members may reasonably reflect upon or affect the University or its Members.

Vexatious — To intentionally annoy, embarrass, harass or harm.

Policy

1.0 Responsibilities and Duties
1.1 Sexual Harassment, including Sexual Assault, by any Member of the University Community or a NonĀ­-University person is prohibited. The University takes steps to prevent where possible, or otherwise minimize, Sexual Harassment and to deal expeditiously with behaviour that violates this Policy.

1.2 Prevention of Sexual Harassment is a shared responsibility of all Members of the University Community.

1.3 All Members of the University Community shall:

a. know what constitutes Sexual Harassment and Sexual Assault;
b. model respectful behaviour and refuse to engage in or condone behavior contrary to this Policy;
c. encourage an environment which is free of Sexual Harassment and Sexual Assault;
d. participate in and facilitate participation in education and training about this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints;
e. familiarize themselves and comply with this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault concerns and complaints;
f. where and when appropriate, advise others of this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints;
g. consult with the Advisor to obtain advice and guidance regarding possible situations of Sexual Harassment and Sexual Assault and refer persons to the Advisor.

1.4 In addition, those Members of the University Community with academic or administrative authority bear the responsibility to maintain work and learning environments free from Sexual Harassment or Sexual Assault by initiating positive measures and taking prompt action should Sexual Harassment or Sexual Assault occur. This includes but is not limited to:

a. educating themselves and those in their unit with respect to Sexual Harassment and Sexual Assault;
b. seeking advice from the Advisor in order to facilitate addressing Concerns and Complaints of Sexual Harassment and Sexual Assault in a prompt, confidential and fair manner;
c. addressing incidents of possible Sexual Harassment and Sexual Assault that occur in the unit in a timely and confidential manner; 
d. upon request, participating in the resolution of Complaints; and
e. implementing any recommendations from an Informal or Formal Resolution Process, which may include disciplinary action.

1.5 The Advisor has the primary responsibililty for the implementation of the Sexual Harassment and Sexual Assault Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints and plays a key, University-wide role in preventing and dealing with Sexual Harassment. In addition, the Advisor is responsible for ensuring that the Sexual Harassment Office performs an educational role in the University community. The Advisor shall maintain impartiality in relation to the Policy and Procedures and be as accessible as possible to the University community. The Advisor reports directly to the President and works in collaboration with the Sexual Harassment Board.

1.6 The Sexual Harassment Board, in collaboration with the Advisor, oversees the implementation of and reviews the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints. The Board is representative of the identified University constituency groups as stated in the Terms of Reference for the Sexual Harassment Board.

2.0 Reporting of Sexual Harassment and Sexual Assault
2.1 Members of the University Community and Non-University Persons may bring forward Concerns or Complaints of Sexual Harassment, including Sexual Assault against a Member of the University Community or against a Non-University Person. Bystanders may bring forward Concerns or Complaints under this Policy.

2.2 This Policy and accompanying University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints do not restrict the right of persons to file a separate complaint with the Newfoundland and Labrador Human Rights Commission, invoke the Criminal Code of Canada or the appropriate collective agreements, or legal rights.

2.3 In cases of reported Sexual Assault, persons are encouraged to contact the appropriate Legal Authorities immediately. In addition, they should refer Concerns to the Advisor and consult the University-wide Sexual Assault Support and Response GuideThe Advisor shall provide information, support, advice and guidance. As Sexual Assault is a criminal offence, at the Complainant's request, the Advisor shall refer the allegation to appropriate Legal Authorities or to other community resources.

2.4 If the President has grounds to believe that the well-being, safety or security of Member(s) of the University community is at risk with regards to sexual harassment or sexual assault, the University shall initiate an external investigation and/or inform Legal Authorities. Such investigation or referrals may be made without a Complainant's consent. In these situations, confidentiality is protected to the extent possible and in accordance with Section 5.4.

2.5 Where there is a report that a minor has experienced Sexual Harassment or Sexual Assault, the University shall take appropriate steps.

2.6 Students are advised to report incidents of Sexual Harassment or Sexual Assault that occur during work terms, placements, internships, instructional field courses or practica outside the University. Students may avail of the support, advice and guidance of the Advisor to do so.

2.7 Non-University Persons who are Complainants may invoke this Policy and its related University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints.

2.8 A Concern or Complaint of any form of Sexual Harassment against a Non-University Person should be reported to the Advisor. Where a Complaint has been made against a Non-University Person, the Advisor will determine, in consultation with the Complainant, the appropriate steps to be taken. The Advisor may also seek advice or guidance. Sexual Harassment by a Non-University Person may result in suspension of privileges, such as access to campus or other appropriate action.

2.9 Where circumstances warrant, the President or a Vice-President, on the advice of the Advisor, may authorize a Unit Assessment, as defined in this Policy.

3.0 Power Differences
3.1 Anyone in a relationship with a person where a Power Differential exists is advised that, if a Complaint of Sexual Harassment or Sexual Assault is subsequently filed, the Power Differential may be construed against the person in power.

3.2 When power differentials exist, those holding positions of authority must respect the power with which they are entrusted. Consent is a required element of such a relationship.

3.3 Pursuant to the Newfoundland and Labrador Human Rights Actsexual solicitation by a person in a position to confer, grant or deny a benefit or advancement to another person shall not engage in sexual solicitation or make a sexual advance to that person. A person who is in a position to confer or deny a benefit or advancement to another person shall not penalize, punish or threaten reprisal against that person for the rejection of a sexual solicitation or advance.

4.0 Conflict of Interest
4.1 Members of the University community are subject to and must comply with the University's Conflict of Interest policy and procedures. See the Conflict of Interest Situations section of the Conflict of Interespolicy. Members should also refer to any conflict of Interest provisions and relevant clauses in the appropriate collective agreement, University Guide for Non-Bargaining, Management and Professional and Senior Administrative Management Employees or other applicable documents.

5.0 Confidentiality
5.1 All persons involved in any process related to this Policy are required to maintain confidentiality. Confidential matters are handled in accordance with the Access to Information and Protection of Privacy Act, 2015, cA-1.2 (the "Access to Information and Privacy Act''), other privacy legislation to which the University is subject, and University policies. Nothing in this section shall be construed so as to prevent a Complainant or Respondent from seeking advice and guidance.

5.2 Only persons with a bona fide need to know the details of a situation will have access to such information and access is limited to the scope of their responsibilities. Third parties attempting to gain or gaining access to personal information with respect to a Concern or Complaint, where such information is not needed to perform the scope of their responsibilities, does so in violation of this Policy and may be in violation of the Access to Information and Protection of Privacy Act.

5.3 A breach of confidentiality by persons involved in any process related to this Policy may be subject to discipline or other appropriate action.

5.4 In cases where the Respondent is an employee of the University, the Respondent and Complainant are entitled to have access to all relevant information created or gathered for a Sexual Harassment or Sexual Assault investigation. In addition, witnesses who participate in an investigation may request information that relates to their statements to the investigator.

5.5  Confidentiality may not apply to persons subject to extra-University judicial processes, or where disclosure is permitted or required by law, or where the well-being, safety and security of a person or persons is a concern. In such circumstances, information, as appropriate, would only be shared with those with a bona fide need to know.

6.0 Process
6.1 The processes as outlined in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints can be availed of by any Member of the University Community or NonĀ­-University Person(s) who wish to report a Concern or Complaint and are explained to all persons prior to electing the process to follow. The person may choose to proceed through:

i. consultation with the Advisor,
ii. the Informal Resolution Process,
iii. mediation,
iv. the Formal Resolution Process,or
v. referring to the University-wide Sexual Assault Support and Response Guide.

6.2 If a Complainant wishes to file a Complaint, normally it would be filed within a year of the incident(s) or a year of when the Complainant reasonably became aware of the incident(s). Recognizing that time and reflection may be needed for a Complaint to decide whether to file a Complaint, the Advisor has the discretion to extend the time limit. Legal and civil proceedings may have a different prescribed time period. Events prior to the one-year period may be referenced by the Complainant if the incident(s) is relevant and part of a series of Incidents. However, the passage of time may affect the University's ability to address the matter.

6.3 A Complaint is considered withdrawn when:

i.  the Complainant withdraws the Complaint at any stage of the process, by informing the Advisor.
ii. the Complainant chooses not to participate in any of the processes outlined in 6.1.

7.0 Interim Measures
7.1 Where a Concern or Complaint of Sexual Harassment or Sexual Assault has been reported, the University will exercise care to protect and respect the rights of the Complainant and the Respondent. The University understands that Complainants may wish to control whether and how their experience will be dealt with. In certain circumstances, the President and the Advisor may take interim measures to protect the well-being, safety and security of the Complainant, Respondent, or both, or to protect other members of the University community while a situation is being resolved, investigated or decided. The Advisor may make recommendations to the President regarding any interim measures deemed appropriate in the circumstances.

7.2 Any decision and action by the President or the Advisor to take interim measures in response to a request from a Complainant or Respondent shall be without prejudice to the rights of the Complainant or the Respondent under these Procedures, and shall not in any way be deemed to be an indication of bias or evidence, on the part of the Advisor or President towards either the Complainant or Respondent.

7.3 Failure to comply with conditions of an interim measure may become part of any investigation.

7.4 The President, in consultation with the Advisor, may make changes to the interim measures, where necessary. If a change is made to interim measures, notice of the change shall be provided by the President or the Advisor in the same manner as the original notice of interim measures.

8.0 Accommodation
8.1 In certain circumstances the duty to accommodate for services, facilities and academic purposes may be required, under the provisions of the Newfoundland and Labrador Human Rights ActIn these circumstances, the Advisor will facilitate the process of accommodation, whlle maintaining confidentiality. See also the University's Workplace Accommodation policy and Accommodations for Students with Disabilities policy.

9.0 Support Services
9.1 The University makes support and services, including providing information, counselling, access or referrals to medical services, academic and other accommodations, available to Members of the University community who have experienced Sexual Harassment or Sexual Assault. Support services are also available to Members who are Respondents.

10.0 Records and Retention
10.1 All records are handled in accordance with the University's Information Management policy, the Privacy policy, the Access to Information and Protection of Privacy Act  and other applicable legislation.

10.2 The Advisor keeps a confidential record of consultations, any advice given and any outcome achieved. Any reports of a general nature generated by the Advisor will only include non-identifying information, for statistical purposes only.

10.3 Record retention is in accordance with the Procedure for Record-Keeping in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints

11.0  Appeals
Complainants and Respondents have the right to appeal or grieve decisions or discipline imposed, in accordance with the following:

11.1  In the case of students:

a. if the matter has been dealt with under this Policy, the appeal shall be directed to the Board of Regents by notice, in writing, delivered to the Secretary of the Board of Regents within fifteen (15) days of the President's notification of the action to be taken.
b. if the matter has been referred to the Student Conduct Coordinator by the Advisor under the Offences section of the Student Code of Conduct, appeals shall be dealt with in accordance with the Appeals section of the Student Code of Conduct.

11.2 In the case of non-bargaining unit staff members, appeals shall be filed in accordance with Level IV of the Complaint and Appeal Procedures as outlined in the Guide for Non-Bargaining, Management and Professional, and Senior Administrative Management Employees.

11.3 In the case of Members of the University who are members of bargaining units, the Respondent has the right to file a grievance regarding the discipline and the decision of the President under the terms of the applicable collective agreement where these apply. The Complainant may have the right to file a grievance regarding the President's finding as to whether Sexual Harassment has occurred or not under the terms of the applicable collective agreement.

11.4 In the case of Administrators who are not members of a bargaining unit, the appeal shall be directed to the Board of Regents by notice, in writing, delivered to the Secretary of the Board of Regents within fifteen (15) days of the President's notification of the action to be taken.

12.0 Frivolous or Vexatious Complaints
12.1 If a review or investigation determines that a complaint is Frivolous or Vexatious, disciplinary action may be taken against the Complainant.

12.2 Any imposed discipline related to Frivolous or Vexatious Complaints will be taken in accordance with the Procedure for Discipline in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints. 

13.0 Retaliation
13.1 No person shall retaliate against another for initiating a consultation, for bringing forward a concern or complaint of Sexual Harassment or Sexual Assault or for being involved in any process under this Policy, including as a witness. The University considers retaliation at any stage to be a serious offence. Where there is evidence of retaliation, the same route as for dealing with Concerns and Complaints of Sexual Harassment, including Sexual Assault will be followed.

13.2 A breach of confidentiality by any person with respect to a Concern or Complaint may also constitute retaliation.

13.3 Any imposed discipline related to retaliation will be taken in accordance with the Procedure for Discipline in the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints

Related Documents

Sexual Harassment Office
Sexual Assault Support and Response Guide
Form #1 Sexual Harassment Complaint 
Form #2 Request for an Informal Resolution 
Form #3 Request for an Investigation
Form #4 Release of Information
Form #5 Acknowledgement of Notification of Advice to Members of Bargaining Units
Form #6 Request for Mediation
Form #7 Consent for a Support Person to Attend Consultation
Electronic Data Security policy
Appropriate Use of Computing Resources policy
Privacy policy
Respectful Workplace policy
Conflict of Interest policy
Protected Disclosure policy
Accessibility for Students with Disabilities policy
Workplace Accommodation policy
Student Code of Conduct 
Assessment and Care Protocol

Procedures

For inquiries related to this policy:

Sexual Harassment Office, 709-864-2015.

Sponsor: General Counsel

Category: Human Rights

Previous Versions:

There is at least one previous version of this policy. Contact the Policy Office to view earlier version(s)

Approval Date 2010-12-09   Effective Date 2010-12-09

University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints

Approval Date: 2017-06-01

Responsible Unit: Office of the General Counsel

These Procedures are designed to deal with consultations as well as Concerns and Complaints of Sexual Harassment and Sexual Assault. They apply University-wide. The President has the authority to relieve against any time limits outlined in these procedures where an extension is needed in good faith and where it is believed not to substantially prejudice either party. Records are handled in accordance with the Procedure for Record Keeping.

1. PROCEDURE FOR CONSULTATIONS

Members of the University community are encouraged to consult with the Advisor regarding any issues, Concerns or Complaints relating to Sexual Harassment. Members may do so through an in-person meeting, email or phone calls, which may be collect calls. The nature of a Concern or Complaint may necessitate that the Advisor travel to a respective campus. Members of the University community and Non-University Persons who think they have been the target of Sexual Harassment, including Sexual Assault, should contact the Advisor.

Anyone may anonymously seek the advice of the Advisor. The Advisor shall provide information about the Sexual Harassment Policy and its related procedures to persons seeking advice, particularly the Procedure for Informal Resolution, the Procedure for Mediation and the Procedure for Formal Resolution. The Advisor shall also provide information about other available University and community services and resources.

All consultations with the Advisor are confidential and are handled in accordance with Section 5.0 of the Policy. (The Consent for a Support Person to Attend Consultation Form (Form 7) may be used).

2. PROCEDURE FOR INFORMAL RESOLUTION

A person may choose to resolve a matter, with the assistance of the Advisor, through Informal Resolution and by completing the Sexual Harassment Complaint Form (FORM 1), the Request for an Informal Resolution Form (FORM 2) and the Release of Information Form (FORM 4). The goal of Informal Resolution is to achieve a resolution that is acceptable to the Complainant and Respondent. Pursuing Informal Resolution does not limit the Complainant or Respondent from invoking other options. In addition, an Informal Resolution is not a pre-requisite to pursuing other options.

The Informal Resolution process is confidential and is handled in accordance with Section 5.0 of the Policy.

The Advisor shall provide advice to the Complainant to identify appropriate ways to resolve the Concern, which may include but are not limited to:

  1. that the Complainant speak to the Respondent, making it clear why the behavior is viewed as unacceptable and gives rise to Concern.
  2. that the Complainant write the Respondent. The Respondent has the right to reply.
  3. that the Advisor contact the Respondent to advise them of the Complaint, and of the Complainant's request that the matter be resolved informally. The Respondent has the right to decide whether or not to participate in the proposed informal process. Normally, the Respondent has ten (10) Days to respond. The Advisor may, in their discretion, and where circumstances warrant, extend this time line. The Advisor may seek the assistance of a third party to facilitate an Informal Resolution and where appropriate, advise the Complainant and Respondent. The Advisor makes no attempt to determine whether Sexual Harassment has occurred.
  4. that the Advisor recommend, where appropriate, the provision of sexual harassment awareness education. So as not to adversely impact the academic or non-academic interests of the Complainant or Respondent, their identities, as well as the nature of the Concern, would remain confidential.
  5. any other processes that meet the goals of Informal Resolution.

In the event of a refusal by the Respondent to participate in the Informal Resolution process, the Advisor shall inform the Complainant and discuss options with the Complainant.

Normally, the Informal Resolution process will not exceed one (1) month. Outcomes of an Informal Resolution process, which may be negotiated between the Complainant and Respondent, may include but are not limited to:

If the goal of resolution acceptable to the Complainant and Respondent is not achieved, the Advisor will discuss options with the Complainant.

3. PROCEDURE FOR MEDIATION

a. The Mediation Process

A Complainant may choose Mediation to resolve a Concern or Complaint of Sexual Harassment by indicating such on the Sexual Harassment Complaint Form (FORM 1) and the Request for Mediation Form (FORM 6) and submitting to the Advisor. When the Respondent is notified, by the Advisor, they will be informed of the Complainant's request that the matter be resolved through Mediation. The Respondent has the right to decide whether or not to participate in the proposed Mediation.

The Advisor shall advise the Complainant and the Respondent that during the Mediation process they may be accompanied by another person of their choice, which in the case of bargaining-unit members may be a union representative. The Complainant and the Respondent will be asked to formally acknowledge that they have been so advised by signing the Acknowledgement of Notification of Advice to Members of Bargaining Units (FORM 5) and returning it to the Advisor. If the Respondent or Complainant chooses to bring another person to Mediation, they must inform the Advisor of the identity of that person at least three (3) days before the first scheduled meeting. If either the Complainant or the Respondent object to the person identified to accompany the other party, the Advisor shall forward the objection to the other party and ask that party to choose another person to accompany them to the Mediation. Both the Complainant and the Respondent shall be advised that the persons they choose to accompany them to a Mediation shall not be persons who have been directly involved in the reported Sexual Harassment. If or when it is determined and agreed that the Complainant or Respondent will be accompanied by support person(s), the Advisor will inform the mediator of the identities of the person(s).

If both the Complainant and the Respondent consent to Mediation, the Advisor is responsible for identifying sexual harassment mediators, who have appropriate education, training, experience and suitability, and for helping the parties mutually agree upon a mediator and completing the Release of Information Form (FORM 4). The Advisor shall ensure that the mediator chosen is appropriately qualified and free of any real, perceived or potential conflict of interest; bias; or reasonable apprehension of bias.

Once a mediator is chosen:

  1. the Advisor shall provide to the mediator a copy of the Complaint and the written response, if any, of the Respondent, and
  2. the mediator shall contact the parties to schedule in-person interviews within five (5) days, not including the day of receipt of their appointment, and advise the Advisor of the dates and times of those meetings.

The mediator shall conduct the Mediation in a fair and objective manner utilizing reasonable methods in an attempt to facilitate resolution by the parties. The mediator shall not impose a resolution.

b. Resolution Through Mediation

If, through the Mediation process, a resolution is achieved by the Complainant and Respondent, the mediator shall record the agreed-upon resolution in writing, which shall be signed by the Complainant, the Respondent and the mediator. Copies shall be presented to each of the parties and the Advisor.

c.  Lack of Resolution Through Mediation

If Mediation proves not to be productive, either party or the mediator may conclude the process. The mediator notifies the Respondent, Complainant and Advisor, in writing, that the Mediation was unsuccessful. Because information obtained during Mediation is without prejudice to the parties, it normally shall not be introduced as evidence in any subsequent proceedings. Neither the mediator nor any other party involved in the Mediation process shall be compelled to give evidence in any future or concurrent University proceeding regarding any information disclosed during the Mediation process except where disclosure is required or permitted by law, or where the well-being, safety and security of a person or persons is a concern.

d. Request for Investigation When Mediation Has Not Resolved the Issue

Upon conclusion of Mediation without resolution, which occurs the day the Advisor receives written notification to that effect from the mediator, the Advisor informs the Complainant, in writing, that they have seven (7) days from the receipt of notice from the Advisor to request an investigation through the Procedure for Formal Resolution. If the Complainant does not request an investigation, the Mediation is considered closed.

4. PROCEDURE FOR FORMAL RESOLUTION

a. Requesting an Investigation
To request an investigation, the Complainant shall complete, sign and file the Sexual Harassment Complaint Form (FORM 1), the Request for an Investigation Form (FORM 3) and the Release of Information Form (FORM 4) with the Advisor, normally within twelve (12) months of the incident or within twelve (12) months of when the Complainant reasonably became aware of the incident. Events prior to the twelve (12) month period can be referenced if the incident(s) is relevant and part of a series of incidents. The Advisor has the discretion to extend the time limit beyond the twelve (12) calendar months of the incident.

Within three (3) days of the date the investigation is requested, the Advisor shall hand-carry both forms and the Complainant's written and signed statement to the President. Any records which the Complainant attaches to the forms shall be copies. The Complainant should keep originals of all records.

In accordance with Section 7.0 of the Policy, the President may impose Interim Measures.

b. Contacting the Respondent of the Complaint

Where the Respondent is identified, the Advisor shall, within three (3) days of receipt of the Complaint, send to the Respondent by Registered Mail with signature, or hand-delivery or by some other means through which proof of delivery can be obtained, the following:

  1. a copy of the Sexual Harassment Complaint Form (FORM 1),
  2. a copy of the Request for Investigation Form (FORM 3),
  3. a copy of the Acknowledgement of Notification of Advice to Members of Bargaining Units Form (FORM 5),
  4. when necessary, a copy of the Release of Information Form signed by the complainant (FORM 4),
  5. a copy of both the Sexual Harassment and Sexual Assault Policy and the University-Wide Procedures for Sexual Harassment and Sexual Assault Concerns and Complaints,
  6. written notice of the Complaint, including the Respondent's option to contact the Advisor for information and support with respect to the Policy and Procedures,
  7. written notice that the Respondent may respond in writing to the Complaint and the direction necessary, as per c. and that a copy of any response will be provided to the Complainant by the Advisor, and
  8. written notice of any interim measures imposed by the President, where applicable. The Advisor shall use their best efforts, where circumstances permit, to ensure that the Complainant and the Respondent are provided with notice in the same manner and at approximately the same time.

c. Respondent's Right to Respond

The Respondent may respond to the Complaint. Any such response must be in writing and delivered to the President, and copied to the Advisor, within five (5) days of the Respondent's receipt of the documentation noted in b. above. Where the Respondent chooses not to respond or does not respond within five (5) days, section g. shall apply.

d. Complaint-Related Correspondence

  1. Correspondence by Letters and Written Notices

    All correspondence and written notices generated by the President regarding Sexual Harassment Complaints that are addressed or copied to Complainants or Respondents shall be copied to the Advisor. Correspondence that is addressed to Complainants or Respondents must be sent through Registered Mail with signature, hand-delivered or by some other means through which proof of delivery can be obtained. Envelopes are to be sealed and stamped with: "Personal and Confidential" and "To Be Opened By Addressee Only". The Advisor shall retain a copy of all such correspondence in accordance with the Procedure for Record Keeping.

  2. ii. Proof of Delivery

    If the addressee is the Complainant or Respondent, a document shall be considered to have been received by the addressee:

If the addressee is the Advisor, or the President, a document shall be considered to have been received by the addressee on the date of delivery, if delivered by hand to the person for whom it is intended, or within five (5) days of the date of mailing, if sent by Registered Mail with signature.

e. When the President Cannot Participate in the Investigative Process

If the President is unable to deal expeditiously with the Request for Investigation, or when they are unable to deal with a complaint due to conflict of interest, bias or reasonable apprehension of bias, they shall as soon as possible delegate the investigation process to a Vice-President.

If the President is the Respondent or Complainant, the matter shall be forwarded to the Chair of the Board of Regents to take the place of the President in respect of all things which the President is required to do under these Procedures with respect to the Complaint. The Chair may delegate this role to the Vice-Chair of the Board of Regents.

f. Determining Whether to Proceed with Investigation

Within fifteen (15) days of the President's receipt of the Complaint, the President shall review the Complaint and any written response from the Respondent and determine if the allegations of Sexual Harassment have enough substance to warrant an investigation.

If the Respondent admits to the allegation(s) of Sexual Harassment as outlined in Complaint as contained in the Sexual Harassment Complaint Form (FORM 1), the President may proceed immediately to consider and impose any discipline. See Procedure for Discipline. In such cases, the President shall consult with advisors, as appropriate.

If the President decides that the Complaint does not warrant an investigation, they shall inform the Complainant, the Respondent and the Advisor in writing of this decision within ten (10) days of receipt of the Request for Investigation. Further the President shall advise the Complainant and the Respondent that they have ten (10) days to avail of the Procedure for Informal Resolution or the Procedure for Mediation. The President shall return all Complaint-related records to the Advisor who shall retain these in accordance with the Procedure for Record Keeping.

If the President decides to proceed with an investigation, they shall notify the Respondent and the Complainant, in writing, that an investigation will proceed, including the following documents:

  1. copies of the relevant documentation
  2. written notice that the Complainant and Respondent may contact the Advisor for information
  3. written notice that during any interviews held throughout the investigation the Complainant and Respondent may be accompanied by another person of their choice, which in the case of bargaining-unit members may be a union representative, and that any accompanying persons must respect confidentiality, as per the Consent for a Support Person to Attend Consultation Form (FORM 7).

These notifications must be sent to the Complainant and Respondent through Registered Mail with signature, hand-delivery or by some other means through which proof of delivery can be obtained, and hand-delivered to the Advisor.

g. Respondent's Participation

The Respondent may decide whether or not to participate in any investigation. However, the process of investigation and disposition of a Complaint under these Procedures shall continue in the absence of such participation by the Respondent. 

During the investigation process, the Complainant and the Respondent may be accompanied by another person of their choice, which in the case of bargaining-unit members may be a union representative. If the Respondent or Complainant chooses to bring another person to an interview(s), they must inform the Investigator of the identity of that person at least three (3) days before the first scheduled interview, complete the Consent for a Support Person to Attend Consultation Form (FORM 7) and return it to the Investigator. The Complainant and the Respondent shall be advised that the persons they choose to accompany them shall not be persons who have been directly involved in the reported Sexual Harassment or Sexual Assault.

h. Initiation of the Investigation

The investigation process commences when the Complainant and Respondent receive written notification from the President, and shall conform to the relevant clauses of the appropriate collective agreements, Guide for Non-Bargaining, Management and Professional, and Senior Administrative Management Employees or Student Code of Conduct.

The President shall appoint the Investigator. Investigators are appointed on the basis of their education and training, their awareness about issues pertaining to Sexual Harassment, and their experience. Investigators are external to the University and normally are appointed on a case-by-case basis. The Investigator shall not be an employee, member, or partner of a law firm that has been used as a solicitor by the University; however, they can have previously provided investigative services to the University. No person should be selected where there is a real, perceived or potential conflict of interest; bias, or reasonable apprehension of bias. Any mediator previously involved in the case shall not be the Investigator. Only an Investigator who is able to submit their investigative report within forty-five (45) days of being appointed shall be selected.

i. Role of the Investigator

The Investigator shall conduct a thorough investigation into the allegations of sexual harassment and write an investigative report which shall be submitted to the President. The Investigator shall ascertain the facts surrounding the Complaint and conduct the investigation in an impartial, fair and objective manner. If the Complaint involves the last in a series of incidents, all named incidents that fall within the definition of Sexual Harassment shall be investigated without regard to time limits. Any persons whose evidence is referenced in the investigation shall be named. The investigator will consider and summarize the relevant facts based on a review of the interviews and documentation. The investigator shall ascertain whether the resulting facts meet the definition of Sexual Harassment and shall report whether, based on the balance of probabilities, the evidence supports or refutes the Complaint. Throughout the investigation, the Advisor will monitor its progress and will be the investigator's primary contact and resource, if matters arise during the course of an investigation.

j. Release of Investigative Report

The investigation shall be completed and the investigative report shall be submitted to the President within forty-five (45) days of the appointment of the Investigator. In accordance with Section 5.4 of the Policy, the Complainant and the Respondent have the right to full information concerning the allegations and supporting arguments and shall be given a copy of the investigative report. The President will send copies of the investigative report to the Complainant and the Respondent through Registered Mail with signature, hand-delivery or by some other means through which proof of delivery can be obtained and a copy of the investigative report will be hand carried to the Advisor. The Complainant and Respondent shall have the opportunity to respond to the evidence contained in the investigative report if they choose.

k. When Investigation Cannot Be Completed on Time

In the event that the Investigator is unable to complete an investigation within the specified time frames, the Investigator shall seek written authorization from the President for an extension. If the President agrees, the authorization will be copied to the Advisor, and to the Complainant and Respondent, through Registered Mail with signature, hand-delivery or by some other means through which proof of delivery can be obtained. One (1) such extension may be granted at the discretion of the President and normally shall not exceed twenty-five (25) days. Further extension(s) shall be made with the mutual consent of the parties and such consent shall not be unreasonably denied.

l. President's Response to Investigative Report

Upon receipt of the investigative report, the President shall provide the Complainant and the Respondent five (5) working days to respond to the investigative report. The President shall decide if Sexual Harassment has occurred, based upon the Investigator's report and the responses, if any, from the Complainant and the Respondent. Prior to making the decision, the President may consult the Advisor and the General Counsel for their specific expertise. Within ten (10) working days of receiving the investigative report, the President shall provide:

The President shall notify the Complainant and Respondent by Registered Mail with signature, or hand-delivery or by some other means through which proof of delivery can be obtained by providing a copy of the decision. The Advisor shall be provided a copy of this documentation.

5.  PROCEDURE FOR DISCIPLINE

The President shall consult with advisors, as appropriate, and may impose discipline. Following the principle of progressive discipline, the factors that will be discussed during the consultation will include but are not limited to:

  1. the nature and severity of the harassment including the degree of aggressiveness and physical contact,
  2. the effect(s) of the conduct or comments on the Complainant,
  3. age disparity between the Complainant and the Respondent,
  4. whether the offence was an isolated incident or involved repeated acts,
  5. the frequency and duration of the harassment,
  6. whether there was an imbalance in power between the parties,
  7. any record of discipline for the Respondent in relation to Sexual Harassment,
  8. sanctions applied in similar cases,
  9. mitigating or aggravating circumstances affecting either party, and
  10. the potential risk to the well-being, safety and security of Members of the University community.

The existence of proceedings or determinations of any kind in any other forum shall not diminish the President's authority and jurisdiction to impose discipline under these Procedures. For example, a person, whether convicted or not in a court of law, can still be subjected to discipline by the President under the applicable handbook or guide, collective agreement or code of conduct.

Any imposed discipline will be taken in accordance with the Guide for Non-Bargaining, Management and Professional, and Senior Administrative Management Employees, Student Code of Conduct, applicable collective agreements or, for persons not covered by one of the above, the applicable contractual provisions. Discipline may include:

 
Employees
Students
  • Oral reprimand/warning
  • Participation in educational session
  • Written reprimand/warning
  • Written reprimand/warning
  • Exclusion from University activities
  • Service to the University or community
  • Loss of privileges/access
  • Written assignment(s)
  • Modification of responsibilities
  • Non-Academic Probation
  • Suspension without loss of pay
  • Loss of privileges/access
  • Suspension with loss of pay
  • Exclusion from University activities
  • Termination/dismissal
  • Eviction from University Residence
 
  • Suspension
 
 
  • Expulsion
 
 

In the case of those employees who are members of the Memorial University of Newfoundland Faculty Association (MUNFA), the ONLY disciplinary measures that may be taken are: a letter of warning or reprimand, suspension without loss of pay, suspension with loss of pay, or dismissal.

The President communicates the decision regarding discipline to the Respondent as well as to the appropriate senior official(s) of the University for action or follow-up. The Respondent and the Complainant have the right to appeal or grieve in accordance with this Policy or any applicable collective agreement. The President will notify the Secretary of the Board of Regents, the Director Faculty Relations or the Director of Human Resources, as appropriate, as well as the Advisor if the President's decision is grieved or appealed.

6. PROCEDURE FOR RECORD KEEPING

Record keeping is in accordance with the University's Information Management policy and as outlined below.

a. Records relating to consultations

The Advisor keeps consultation notes. If no resolution is sought, the records are destroyed, at the discretion of the Advisor. A non-Identifying account is retained for statistical purposes.

b. Records relating to the Informal Resolution Process

The Advisor keeps consultation notes. If the Informal Resolution is successful, a record of the agreement is kept for up to twelve (12) months after the Informal Resolution was requested or longer at the discretion of the Advisor. If the Informal Resolution is not successful, the associated records are destroyed, at that time. A non-identifying account of the Informal Resolution process is retained for statistical purposes.

c. Records relating to Mediation

If a resolution is achieved through Mediation, the mediator must return all documentation generated by the Mediation and the signed resolution to the Advisor within five (5) days of achieving a resolution. The Advisor destroys the mediator's notes and shall place the signed resolution in the Sexual Harassment Office confidential file from any period of time contemplated by the resolution, or for five (5) years, from the date of signing, whichever is longer.

If there has been a tack of resolution through Mediation, the mediator returns all records generated by the Mediation to the Advisor, with five (5) days. The Advisor immediately destroys all records related to the Mediation, except the applicable forms generated and Respondent's statement, if provided. If the Complainant does not ask for an investigation, these two records are maintained in the Sexual Harassment Office confidential file for five (5) years.

d. Records relating to the Formal Resolution Process

Upon the conclusion of any investigation, the President and the Investigator shall return to the Advisor all documentation including copies, pertaining to the Complaint and investigative process.

The documentation for the case is securely retained by the Advisor while the case is considered open, which occurs under the following conditions:

When the file is considered closed, the Advisor shalt retain the documents pertaining to the Complaint and the investigation in the Sexual Harassment Office confidential file for that period provided in the applicable collective agreement or otherwise seven (7) years.

The Complainant or the Respondent may request that a copy of the investigative report be placed in their personal file in the Department of Human Resources, or if the Complainant or Respondent are students in the confidential file in the Sexual Harassment Office.

e. Access to records

During the period of retention, access to records shall be limited to the Advisor and, at the discretion of the Advisor, any party with a bona fide need to know.

f. Destruction of records

If within the prescribed retention period, there are no further Complaints against the same Respondent, the Advisor shall destroy, in a secure manner, all records associated with the case, at the end of the prescribed retention period. If, however, issues of a similar nature are brought to the attention of the Advisor prior to the expiry of the prescribed retention period, the records relating to the original matter shall be retained until the expiry of the prescribed retention period for the records related to the new issue.

When records and files are destroyed, a non-identifying account is retained for statistical purposes.


In the event there are discrepancies or inconsistencies between the above document and the University's Sexual Harassment and Sexual Assault Policy, the University's Sexual Harassment and Sexual Assault Policy shall prevail.

Sexual Harassment Forms:

Form #1 Sexual Harassment Complaint Form
Form #2 Request for an Informal Resolution
Form #3 Request for an Investigation
Form #4 Release of Information
Form #5 Acknowledgement of Notification of Advice to Members of Bargaining Units
Form #6 Request for Mediation
Form #7 Consent for a Support Person to Attend Consultation