February 2012 | 2nd Edition – Managing unreasonable complainant conduct practice manual
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Supporting student complainants
People will not make a complaint unless certain conditions are met. There are a number of things that complainants are looking for when they are considering making a complaint.
• They must be confident they will not suffer detriment or disadvantage for complaining.
• They must believe that making a complaint will serve some good purpose – that appropriate action will be taken.
• They must believe it is acceptable to make a complaint, and know how to make it – including who to make it to, what information it must contain, and any relevant time limits. [A/NZ S 5]
The legislative protections available to staff under a university's internal reporting policy for 'whistleblowing' disclosures are not available to students who make a complaint in some jurisdictions. It is therefore important for university complaint handlers to realise that – in practice – these students are often in effectively the same position as 'whistleblowers'. For example:
• Although students are not normally on the university payroll, they are 'internal' to the organisation in the sense that they 'work' at the university.
• If students make disclosures/complaints, these are often about people that they must have regular and continuing contact with.
• The subjects of their disclosures (and their colleagues) can take detrimental action against students that can seriously affect their future.
• The higher the level of study, the more 'workplace-like' the study environment will be.
Without a legislative scheme that protects students who make disclosures about mismanagement or misconduct, universities need to address this issue administratively. This is best done by having an effective internal complaint system that provides a climate in which students feel confident they can complain without fear of disadvantage. Universities may wish to consider adopting a policy that sets out the rights and responsibilities of complainants and endorses the right of everyone covered by the policy to make a complaint (that is not knowingly false or vexatious) free from reprisals.
Protecting complainants against reprisals
There is both an individual and public interest in protecting a complainant against reprisals that may arise from a complaint made in good faith, regardless of whether the complaint is ultimately found to be sustained or dismissed.
The university should be prepared to issue strong warnings to those who may consider reprisals and, if these are ignored, act promptly and decisively against those involved in any reprisals.
In addition, the university should be prepared to make arrangements to prevent disadvantage to a complainant. These necessary steps may include, for example, arranging an alternative lecturer or course supervisor for the complainant or appointing a mentor.
Protection against reprisals or disadvantage should not extend to complaints that contain allegations that the complainant either knows are false or could reasonably be expected to know are false. Making a knowingly false complaint can be grounds for disciplinary action being taken against the complainant.
Knowingly false complaints are also unlikely to qualify as disclosures under whistleblower legislation.
It should be stressed, however, that extreme care must be taken with such matters. A complaint that seems to lack plausibility or is not found to be substantiated is not necessarily false. Whether cases are decided 'beyond a reasonable doubt' or 'on the balance of probabilities', there will always be cases where there is insufficient evidence to reach certainty about the facts of a matter. This does not and cannot mean that the way is now free for that person or authority to take reprisal action against the individuals who complained about them.
Universities have a particular power imbalance between students and staff that unfortunately provides many opportunities for reprisals to be taken against student complainants in ways that may be difficult to expose.
There is a corresponding responsibility on university administrations to ensure that students who make legitimate complaints are given every reasonable protection.
Providing protections and support
Complaint handling at universities: Australasian best practice guidelines
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Ultimately, the best protection comes from strong leadership – committed to promoting an administrative culture that welcomes complaints and treats complainants as assets of good management and
organisational improvement.
A 'no disadvantage test' should apply to complainants. Except where bad faith is proven, the university should ensure that a complainant does not suffer disadvantage (or equitable redress is provided for any unavoidable disadvantage) from making their complaint. [A/NZ S 5.1.2]
If there has been unavoidable disadvantage to a complainant, every effort should be made to redress that disadvantage. Options for such redress are explored in detail in Annex J of the draft Australian Standard and are grouped under five broad headings:
• Communication – explanations about why a problem occurred or further information about a problem.
• Rectification – changes or corrections to conduct or procedures or records.
• Mitigation – moderation of the severity of the detriment suffered.
• Satisfaction –an apology, an admission of fault, or the institution of disciplinary action.
• Compensation – financial restitution for detriment.
People who are the subject of a complaint
People who are the subject of a complaint are fully entitled to the relevant elements of procedural fairness set out above. Where practical and appropriate, the identity of the subject of an investigation should be kept confidential during the investigation.
If the complaint is found to be without substance, not proven or unable to be determined, the university should take reasonable steps to provide redress for any significant detriment that may have occurred to the subject of the complaint. This is of particular importance if knowledge of the complaint has become public.
Options the university could consider would include an apology on behalf of the university and/or publishing the findings.
Witnesses or other parties to handling a complaint
Witnesses or others who help in handling a complaint may potentially be subject to reprisals or disadvantage because of their participation in that process. Their position in this respect may be little different to that of a complainant. Since there is an obvious public interest in encouraging witnesses to come forward and for others to help with handling complaints, such people should be given similar support to that offered to complainants. This could be done by, where practical, maintaining the confidentiality of their identity, appointing a mentor and facilitating access to alternative lecturers, courses and supervisors.
Maintaining confidentiality
An important issue to canvass at the outset of handling a complaint is whether there is a need for
confidentiality. If there is a reasonable likelihood of detrimental action against a complainant (either by the subject of the complaint or by fellow staff or students) in reprisal for making the complaint, there should be a presumption that the complainant's identity will be kept confidential if this is possible and appropriate.
In many cases, the identity of the complainant will be obvious and confidentiality is simply impracticable.
Any attempt to maintain confidentiality may mean it is impossible to effectively investigate the complaint, often because of the requirements of procedural fairness to the subject of the complaint. Issues surrounding confidentiality should be discussed with the complainant at the outset and, if confidentiality is to be
preserved, the complainant should be advised of the need for them to avoid breaching the confidentiality of their identity as the complainant.
Complaints of a serious nature may qualify as being disclosures to which legislative protections apply. If this occurs, there are generally certain statutory rights to confidentiality of the complainant's identity – and the risk of significant criminal penalties for anyone who takes detrimental action against the complainant in reprisal for having made a protected /public interest disclosure. It is therefore vital at the initial assessment stage to consider whether a complaint may also be a disclosure in the public interest and have regard to the relevant legislation.
A complement to procedural fairness in an investigation is the need to ensure appropriate security for the investigation file and associated materials – such as computer hard drives and disks, tapes, photographs and other records. Maintaining proper levels of confidentiality about all aspects of the investigation during its currency (and, where appropriate, after it is finalised) is essential for those conducting or assisting with the investigation. This can be of critical importance in minimising damage to individuals who are the subject of complaint in cases where serious allegations are ultimately found to be baseless or misconceived.
February 2012 | 2nd Edition – Managing unreasonable complainant conduct practice manual