Defence Forces Policy on Interpersonal Relationships in the Defence Forces

           

Interpersonal Relationships in the Defence Forces

Preface

Civil Legislation and the Defence Forces              

Section 1          

General Statement of Policy                   

Section 2          

Superior / Subordinate Relationships       

Section 3          

Sexual Behaviour of Members of the Defence Forces        

Section 4

Discrimination               

Section 5

Sexual Harassment and Harassment       

Section 6

Bullying            

Section  7         

Procedures for Making and Dealing with Complaints of Unacceptable Behaviour      

         

CIVIL  LEGISLATION AND THE DEFENCE FORCES

Introduction  Since the publication of the Defence Forces first Administrative Instruction on Interpersonal Relationships, in Feb 1996, new employment and equality legislation has been introduced – the Employment Equality Act 1998, and the Equal Status Act 2000. Following the publication, in March 2001, of the recommendations of the Government Task Force on the Prevention of Workplace Bullying, existing legislation - the Safety, Health and Welfare at Work Act 1989 and the Industrial Relations Act 1990 - has been utilised to address Workplace Bullying.  Under the above legislation three separate Codes of Practice were published in 2002, with the purpose of providing guidance for employers in drawing up policies and procedures in relation to Sexual Harassment, Harassment and Bullying in the Workplace.  

The legislation, referred to above, and the Codes of Practice have relevance for the Defence Forces, from a legal and ‘best practice’ perspective, and in drawing up the revised policy and procedures on Sexual Harassment, Harassment and Bullying, full account has been taken of the provisions of this legislation and the associated Codes of Practice.

 

The Employment Equality Act 1998

The Employment Equality Act 1998 deals with sexual harassment and harassment in the workplace or in the course of employment. It places a responsibility on employers to ensure that sexual harassment and harassment will not be tolerated where it is perpetrated by the employer or employee, and compels employers to take such steps as are reasonably practicable to ensure a work environment free from sexual harassment and harassment.

 

The Act also provides for the establishment of the Equality Authority which has a range of functions including providing information and, in certain cases, assistance for persons seeking redress by taking their case to the Director of Equality Investigations.

 

The general provisions and prohibition on discrimination laid down in the Act apply to the Defence Forces except in relation to discrimination on the age and disability grounds where the Act does not apply. Furthermore, the Act recognises that there are separate redress procedures for the Defence Forces. A member of the Defence Forces may refer a claim for redress (to which the Equal Pay Directive or the Equal Treatment Directive is relevant) to the Director of Equality Investigations, provided that the claim has been referred in the first instance under the procedure set out in the Defence Forces mechanisms and either a period of twelve (12) months has elapsed since the referral or the claimant is not satisfied with the recommendation given.

 

A statutory Code of Practice (S.I. No.78 of 2002) on Sexual Harassment and Harassment at Work, prepared by the Equality Authority and made under the Employment Equality Act 1998, was launched on 27 March 2002. Its purpose is to provide guidance to employers in relation to their duties to employees in this regard, in compliance with the Employment Equality Act, 1998, and the Equal Status Act, 2000.

 

Safety, Health and Welfare at Work Act 1989

While Workplace Bullying does not have specific legislation of its own, it comes under this Act, and also the Industrial Relations Act 1990, which is addressed below. The Safety, Health and Welfare at Work Act 1989 refers to the employer’s responsibility to ensure, as far as is reasonably practicable, that that the working environment is free from danger to the health, safety and welfare of the employees.  Duties are conferred on employees to protect their own health, safety and welfare and that of their co-workers or those who might be affected by another’s actions, or omissions, while at work.  To comply with the Act, employers – including the Defence Forces - must also include in their Safety Statement an identification of the hazards and a risk assessment in relation to the existence of Workplace Bullying.

 

The National Authority for Occupational Safety and Health, with the consent of the Minister of State at the Department of Enterprise, Trade and Employment produced a Code of Practice entitled “Code of Practice on the Prevention of Workplace Bullying”, which was launched on 27 March 2002.  The aim of this Code of Practice is to provide practical guidance to help identify instances of bullying in the workplace. It also seeks to advise on how to put in place preventative measures to stop bullying from occurring and how to deal with cases when they arise.

 

Industrial Relations Act, 1990

A statutory Code of Practice on Workplace Bullying entitled “Code of Practice detailing Procedures for Addressing Bullying in the Workplace” (S.I. No. 17 of 2002), prepared by the Labour Relations Commission was made under the Industrial Relations Act 1990 and launched on 27 March 2002. Its purpose is to set out, for the guidance of employers, employees and their representatives, effective procedures for addressing allegations of workplace bullying.

 

Relevance of the Codes of Practice

While the three Codes of Practice should first and foremost be a tool for the prevention of Sexual Harassment, Harassment and Bullying in the Workplace it is significant that they are admissible in evidence in cases taken on these issues thus giving them legal status in these areas. The Office of the Director of Equality Investigations, the Labour Court or the Circuit Court, in hearing cases, will look to the Codes of Practice in assessing the practice and approach of the employer in fulfilling their responsibilities under the Acts.

INTERPERSONAL RELATIONSHIPS IN THE DEFENCE FORCES

 

GENERAL STATEMENT OF POLICY

101.  Conduct within the Defence Forces is governed by the code of military law which consists of the Defence Act and Rules and Regulations made thereunder.

 

102.  Relationships within the military environment are predicated on the fundamental principle that all lawful orders must be obeyed even if such orders are likely to result in injury or death. This sets the Defence Forces apart from all other organisations within the state.  Such authority must, of course, be exercised with the highest sense of responsibility. Moreover, Defence Force Regulation A7 emphasises this by stipulating that superiors, in their treatment of subordinates, will adopt such methods as will ensure respect for authority and at the same time engender feelings of self-respect and personal honour which are essential to military efficiency.

 

103.  It is an inherent requirement of service in the Defence Forces that all members contribute to operational effectiveness, the preservation of group cohesion, respect for command relationships, collective discipline and the maintenance of morale. This requirement places an obligation on all members to act at all times within the law and refrain from behavior which:

is unlawful;

is contrary to or inconsistent with: 

 

          (1)      the maintenance of good order and discipline; 

          (2)      operational effectiveness or the attainment of military objectives;   

          (3)      the standards of professional conduct required within a military force. 

 

104.  Behaviour which contravenes the requirements of subparagraph 103 above is unacceptable and the term unacceptable where used in this Instruction means that it will not pass without action on the part of authority.

 

105.  Depending on the seriousness of any alleged non-compliance with this policy incidents or complaints will be dealt with either through the legal/disciplinary process or through administrative action.

 

106.  Aim       The aim of this Instruction is to set down policy and procedures regarding interpersonal relationships in the Defence Forces in order to deter unacceptable behavior and promote a service environment based on mutual respect and professionalism.

 

107.  It is Defence Forces policy that all members have a right to be treated with respect and dignity and to carry out their duties free from any form of sexual harassment, harassment or bullying.  These unacceptable forms of behavior are a negation of this right, are in many instances illegal, and will not be tolerated in the service.  They have the potential to undermine command relationships, prejudice the maintenance of good order and discipline, harm professional working relationships, undermine morale and damage or interfere with efficiency and operational effectiveness. Where there is evidence of offences having been committed prosecutions will be initiated by the appropriate authorities.  The Defence Forces is committed to ensuring that the military environment is free from any form of sexual harassment, harassment or bullying and the development and maintenance of a positive working environment.

 

108.  A positive working environment places obligations on command but also places responsibilities on personnel of all ranks of the Defence Forces.  It is a requirement that all personnel treat colleagues with respect.  Personnel must also ensure that their own actions and behavior do not cause offence to others or contribute in any way to a discriminatory working environment.  Personnel are expected to support the policy on sexual harassment, harassment or bullying by bringing instances where such behavior has occurred to attention at an early stage and co-operating with an investigation whether as a complainant, the person complained of or as a witness.

 

109.  Dignity Charter for the Defence Forces    Central to the concept of an effective service environment is the commitment of the leadership and members of the Defence Forces to maintain an atmosphere in which the dignity of each individual is respected. In adopting a Dignity Charter, the Defence Forces subscribes to this commitment by seeking to create and maintain a positive working environment that recognises and protects the right of each individual to dignity at work, and to ensure that all individuals are aware of and committed to the principles set out in this Charter. A copy of the Dignity Charter for the Defence Forces is contained in Annex ‘A’. Commanders of each unit / staff section will ensure that copies of this Charter are widely displayed in their own areas of command responsibility. 

 

110.  Complaints of sexual harassment, harassment or bullying should normally be made under the procedures outlined hereunder in Section 7, (Chapter 1 of this Administrative Instruction). However, in the event of an individual submitting a complaint of this kind under Section 114 of the Defence Act 1954 as amended (Redress of Wrongs), then the complaints procedures, as outlined in Chapter 2 of this Administrative Instruction (for Redress of Wrongs), will apply.

 

111.  It is the responsibility of Commanders at all levels to ensure that the military environment is free from any form of unacceptable behavior including sexual harassment, harassment or bullying.  Failure by a commander to ensure that such is the case or to deal adequately with complaints will be considered a dereliction of duty.

 

112.  Commanders (to include unit and sub-unit Commanders, and Heads of Sections in DFHQ and Bde/Svc HQs, throughout this Instruction) will ensure that all personnel under their command are aware of the contents of this Instruction and, in particular, that it falls within the provisions of Section 168(3) (a) (ii) of the Defence Act 1954 as amended.  This Instruction will be used, as appropriate, in talks to troops and in training programmes.  Cadet, recruit courses and career courses for Officers and NCOs will also have periods of tuition on this matter included in their syllabi.

 

SUPERIOR / SUBORDINATE RELATIONSHIPS (Relationships between personnel of different rank)

 

113.  Introduction Members of the Defence Forces are entitled to expect professionalism and impartiality from their superiors, peers and subordinates. It is of prime importance therefore that the work environment in the Defence Forces is clearly based on mutual respect and professional relationships between personnel of all ranks.

 

114.  Policy Relationships between members of the Defence Forces which involve partiality, preferential treatment or the improper use of rank or position are prejudicial to good order, discipline and morale. Such relationships are unacceptable.   Relationships between personnel of different rank require the exercise of sound judgment and common sense particularly on the part of the superior.

 

115.  Unacceptable Relationships Some examples of relationships which are considered to be unprofessional and therefore unacceptable between members of the Defence Forces of different rank are those that involve:

 

Commercial and/or financial activities which adversely affect or are likely to adversely affect the performance of duty.

Borrowing or lending money, for profit or benefit.

Excessive or frequent consumption of alcohol in the company of subordinates.

Favoritism or preferential treatment.

 

SECTION 3

Sexual Behaviour of Members of the Defence Forces

 

116.  Policy The Defence Forces concern regarding the sexual behavior of members is confined to the obligation set out in para 103. Sexual behavior inconsistent with this obligation is unacceptable and will warrant legal / disciplinary or administrative action.

 

117.  This instruction authorises the use of standing or other orders by Commanders to describe and apply standards of acceptable behavior in particular circumstances such as training establishments, ships or during operational deployments. All such orders must be consistent with this administrative instruction. 

 

118.  Examples Unacceptable sexual behavior may range from serious offences to matters which might be the subject of censure. The action to be taken will, following investigation, fall to be considered in the light of the circumstances of each case. The exercise of common sense and good judgment is a prime requirement of any such investigation. Some specific examples of the types of behavior that are unacceptable are listed hereunder:

 

Any form of sexual assault.

Attempting to engage in or engaging in sexual activity by force, coercion, or intimidation.

Attempting to engage in or engaging in sexual activity for compensation.

In training establishments, displays of affection and intimacy between a student and a member of staff or, within the confines of the training establishment between one student and another In training establishments, a sexual relationship between a person in authority and a trainee. In such situations the trainee is susceptible to influence. Trainees may feel they have less choice to refuse a sexual advance from persons in authority, who are important in determining their future careers in the Defence Forces.

Indiscreet or compromising sexual relationships between a superior and a subordinate.

Public flaunting and/or public advocacy of a particular sexual activity where such activity is likely to be prejudicial to good order and discipline.

Sexual relationships and activities conducted openly in a communal environment, or encouraging other members to take part in such activities as an expected part of a communal environment.

Spreading rumours of a sexual or personal nature concerning a colleague’s private affairs.

 

SECTION 4

DISCRIMINATION

 

119.  Definition       The Employment Equality Act, 1998 defines discrimination as the treatment of one person in a less favourable way than another person is, has been or would be treated. The Act outlaws discrimination on nine (9) distinct grounds: gender, marital status, family status, sexual orientation, religious belief, age, disability, race and membership of the traveler community.

 

 120.  Complaints of discrimination that have nothing to do with sexual harassment,  harassment or bullying will be dealt with under Section 114 of the Defence Act 1954 as amended (Redress of Wrongs).

 

Section 5

SEXUAL HARASSMENT 

 

121.  Definition  Under Section 23 of the Employment Equality Act 1998 the definition of sexual harassment includes any:

 

act of physical intimacy,

request for sexual favours, or 

 

other act or conduct including spoken words, gestures or the production, display or circulation of written words, pictures or other material that is unwelcome and could reasonably be regarded as sexually offensive, humiliating or intimidating

 

122. Behaviour falling within the scope of the above is illegal and constitutes unacceptable behavior in the Defence Forces.  Sexual harassment which amounts to a sexual assault is a criminal offence and will be dealt with as such. Sexual harassment may be committed by a person of the same sex as the victim.

 

123.  Examples  Many forms of behavior can constitute sexual harassment. It includes examples like those contained in the following list although it must be emphasised that the list is illustrative rather than exhaustive. A single incident may constitute sexual harassment.

 

Physical conduct of a sexual nature   This may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another person’s body, assault and coercive sexual intercourse.

 

Verbal conduct of a sexual nature     This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the workplace after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendoes or lewd comments.

 

Non-verbal conduct of a sexual nature         This may include the display of pornographic or sexually suggestive pictures, objects, written materials, emails, text-messages or faxes. It may also include leering, whistling or making sexually suggestive gestures.   

 

Sex-based conduct     This would include conduct that denigrates or ridicules or is intimidatory or physically abusive of a person because of his or her sex such as derogatory or degrading abuse or insults which are gender-related. 

 

124. Humour, friendship and relationships based on mutual respect and consent have nothing to do with sexual harassment. However, consent is something actively given as opposed to "just going along with it". In a group situation not all may be willing participants in open and frank discussions on sexual matters or usual workplace humorous comments. The line between such apparent harmless behavior and actual harassment can be very fine and all personnel are expected to use common sense and good judgment in this area. 

 

125.  Complaints of sexual harassment can be stressful for both the complainant and the person complained of and should be handled promptly, confidentially and with sensitivity.

 

Common Elements applying to both Sexual Harassment & Harassment

 

126. The definitions of sexual harassment and harassment (harassment is dealt with in the next paragraph) have several common concepts:

 

Unwelcome conduct     The behavior complained of must firstly be unwelcome.  It is up to each person to decide:

 

(1 )  what behavior is unwelcome, irrespective of the attitudes of others to the matter;

(2)   from whom, if anybody, such behavior is welcome or unwelcome irrespective of the attitude of others to the matter.

 

The fact that an individual has previously agreed to the behavior does not stop him/her from deciding that it has now become unwelcome.  It is the unwanted nature of the conduct which distinguishes sexual harassment and harassment from friendly behavior which is welcome and mutual.

Sexually and / or otherwise offensive, humiliating or intimidating     In addition, the behavior must also be reasonably regarded as offensive, humiliating or intimidating to the person.

 

Intention of the Perpetrator  The intention of the perpetrator of the sexual harassment or harassment is irrelevant. The fact that the perpetrator has no intention of sexually harassing or harassing the person is no defence. The effect of the behavior on the person is what is important.

 

Non workplace Sexual Harassment or Harassment  The scope of the sexual harassment and harassment provisions extend beyond the workplace for example to conferences and training that occur outside the workplace. It may also extend to work-related social events.

 

Different treatment because of acceptance or rejection of Sexual Harassment or Harassment  The protection extends to where an individual is treated differently in the workplace because he/she has rejected or accepted the sexual harassment or harassment for example in relation to decisions concerning access to training, promotion or salary.

 

HARASSMENT

 

127.    Definition Under Section 32 of the Employment Equality Act 1998, harassment is defined as any act or conduct including spoken words, gestures, or the production, display or circulation of written words, pictures or other material that is unwelcome and could reasonably be regarded as offensive, humiliating or intimidating.

 

The definition of harassment is similar to that of sexual harassment but without the sexual element.

The harassment has to be based on the relevant characteristic of the person whether it be the person’s marital status, family status, sexual orientation, religious belief (or none), age, disability, race, colour, nationality or ethnic or national origin or membership of the traveller community.

 

Harassment extends to situations where the person does not have the relevant characteristic but the harasser believes that he/she has that characteristic, for example, if the harasser thought that the person was gay and the person wasn’t.



128.  Behaviour falling within the scope of para 127 above constitutes unacceptable behavior in the Defence Forces.

 

129.  Examples  Many forms of behavior constitute harassment including:

 

Verbal harassment – jokes, comments, ridicule or songs.

Written harassment – including faxes, text messages, emails or notices.

Physical harassment – jostling, shoving or any form of assault.

Intimidatory harassment – gestures, posturing or threatening poses.

Visual displays such as posters, emblems or badges.

Isolation or exclusion from social activities.


SECTION 6

BULLYING

 

130.  Definition of Bullying             Bullying is defined as repeated inappropriate behavior, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual's right to dignity at work. An isolated incident of the behavior described in this definition may be an affront to dignity at work but as a once-off incident is not considered to be bullying. (Government Task Force on the Prevention of Workplace Bullying, 2001) 

 

131.  Behaviour falling within the scope of para 130 above constitutes unacceptable behavior in the Defence Forces.

 

132.  Bullying can be perpetrated not only by a superior on a subordinate, but also by a peer on another peer, or by a subordinate on a superior, or by a group to constitute unacceptable behavior.

 

133.  Bullying must be distinguished from the proper use of rank and authority which is necessary to achieve legitimate military objectives. Bullying is, in fact, the misuse of rank and authority. Operational effectiveness requires the Defence Forces to be physically strong and robust and, when needed, to display controlled aggression. This is not achieved by bullying.  It is the responsibility of commanders at all levels to protect individuals from both physical and mental intimidation by peers or persons in positions of authority. Initiation ceremonies involving assault, humiliation, intimidation, or the abuse of alcohol are unacceptable.

 

134. The monitoring, review and evaluation of performance is an essential part of the command function.  All superiors are required to effectively monitor the performance of their subordinates.  It is the duty of superiors to be open with subordinates about performance, attendance or general conduct.  Effective supervision may require critical comments to individuals about issues relevant to their official duties.  However, such criticism should not be personalised but directed against the conduct or performance of a subordinate.  Bullying does not arise, where critical comments are made in an honest and constructive manner.

 

135.  Examples The list of examples, below, should be regarded as illustrative rather than exhaustive:

 

Intimidation.

Eyeballing or shouting into a person’s face.

Preventing the victim from speaking by using aggressive and/or obscene language.

Subjecting an individual to unreasonable scrutiny.

Swearing or other forms of demeaning name-calling.

Physical abuse or threats of abuse.

Physically attacking, threatening to attack or acting in a menacing way towards another person.

Gratuitous commenting on the appearance of another person

Setting unreasonable or impossible deadlines or impossible or meaningless tasks.

Unwarranted or disproportionate criticism unsupported by facts of an individual's work performance.

Manipulation of the victim's reputation by rumour, gossip, ridicule and/or innuendo.

Making an individual, his or her beliefs or opinions, the butt of jokes or uncomplimentary remarks which are likely to cause offence.

Social exclusion or isolation; deliberately ignoring or excluding an individual on a persistent basis.

Undermining the authority of a colleague in the workplace.

Manipulating the nature of the work or the ability of the victim to perform the work, for example by withholding information in order to undermine a colleague.

 

SECTION  7

PROCEDURES FOR MAKING AND DEALING WITH COMPLAINTSOF UNACCEPTABLE BEHAVIOUR

General Provisions

136. Time Limit for submitting Complaints  A complaint of unacceptable behavior including sexual harassment, harassment or bullying should be forwarded as early as possible to assist the process in reaching a timely resolution. This is important as the passage of time can reduce or alter a person’s memory of an event and consequently affect the accuracy of reports and evidence. Furthermore, some of the persons involved may have moved on from the unit or station where the alleged act occurred making contact and the maintenance of confidentiality more difficult. In any event, a complaint must normally be submitted within six (6) months from the date of the most recent occurrence of the alleged act complained of, before it can be dealt with under these procedures. Only in exceptional circumstances should complaints be brought after six (6) months and complaints brought after one (1) year will not be considered.

 

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

An Informal Approach, where the complainant approaches the person complained of directly, or with the assistance of a third party.

 

A  Formal Approach, involving a written complaint and dealt with by the chain of command, either:

 

(1)   through the legal/disciplinary process; or

(2)        by administrative action.

 

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

 

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

 

139.    Third Party A third party can include any member of the Permanent Defence Force, someone with the trust and confidence of the complainant. An effective third party can help clarify if a complaint is warranted, advise on options and procedures or facilitate an informal settlement.

 

140.    A Commander of either party involved may not act as a third party. Commanders must bear in mind that any prior involvement in an informal approach may lead to them being debarred from adjudicating further should the case proceed to a formal level.

 

141.    A written formal complaint will be submitted by a complainant directly to his/her Commander. In the case of DFHQ or a Bde/Svc HQ, the Commander shall be the Head of the Staff Section. In a Battalion/Regiment size unit, this will be the Company/Battery Commander, who may have to refer it on to the Unit Commander to be dealt with depending on the rank and appointment of the complainant and/or the person complained of. Unit or Staff Section Standing Orders or SOPs will indicate the particular Commander/Head of Section to whom a written formal complaint is directly submitted by members of that unit or Staff Section.

 

142.    Commanders may seek legal advice and/or the advice of a superior or other person with competence in the area. This is important to ensure that any subjective beliefs or opinions that they may have, do not unduly influence their decisions or that any prior involvement in relation to the complaint has not debarred them from adjudicating further on the matter.

 

143.    In certain cases which would be regarded as particularly sensitive a Commander may submit a request to higher authority to have an Officer or NCO of the Bde/Svc with special training in harassment investigations assist in the Commander’s investigation.

 

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

 

145.    Personnel shall be protected from intimidation or victimisation for making a complaint or assisting in an investigation. Retaliation against a person for making a complaint or for coming forward as a witness will be treated as a disciplinary offence.

 

146.    Even if a complaint is not upheld, personnel can be assured that bona fide complaints will not be viewed as malicious or mischievous. However, if a complaint on investigation is determined to have been taken with malicious or mischievous intent, appropriate disciplinary action should be initiated against the complainant. This provision should not deter personnel from forwarding genuine complaints.

 

147.    In discharging their responsibilities regarding a reported complaint, Commanders will ensure that a complainant and the person complained of are provided with the necessary assistance and support. The complainant and the person complained of may, if they so wish, be accompanied at a Commander’s initial meeting or investigation of the complaint by a member of the Permanent Defence Force not acting in a legal or Representative Association capacity. Such person would normally be a colleague or superior with whom they are comfortable who would provide moral support and where it assists the process speak on their behalf.  

 

Informal Approach

148.  Complaints of unacceptable behavior should, where practicable, be resolved by initiating action at the lowest level possible. Accordingly, a complainant who considers that he/she has been subjected to such behavior should:

Endeavour to resolve the incident by making clear to the offending person that the behavior is offensive and unwelcome. (It may be the case that the offending person does not realise the effect of his/her behavior).

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

Endeavour to resolve the incident informally by seeking the assistance of a third party. In any such informal intervention it should be made clear to the person complained of that any explanation offered will not be subsequently used in evidence against him/her in support of disciplinary charges.

If the behavior persists, proceed with the Formal Approach by reporting the matter in writing to his/her Commander

 

Formal Approach

149. A person who wishes to pursue a formal complaint in the first instance or who wishes to proceed with a formal complaint, the informal approach having failed, will make their complaint directly and in writing to their Commander (Ref para 141. The following procedure will apply:

 

The written complaint will be placed in a sealed envelope addressed to the Commander and marked “CONFIDENTIAL” and “To be opened by the person to whom addressed”.

If a person feels he/she may have a difficulty in getting the written complaint directly to the Commander he/she may enlist the assistance of a third party (as described in para 139) to ensure its delivery.

 

Written complaints should contain:

 

(1)      Details of the person or persons against whom the complaint is being made.

 

(2)      Full details of the alleged act or acts constituting the behavior complained of including dates, times and places.

(3)      Details of any informal action taken to resolve the complaint.

(4)      A list of any witnesses.

(5)      An indication of what would satisfactorily resolve the complaint.

Where the person complained of is the Commander the formal complaint will be forwarded to the next superior in the chain of command.

 

150.  On receipt of a written complaint the Commander will:

Within three (3) days of receiving it acknowledge the written complaint, in writing to the complainant.

Arrange to meet with the complainant at the earliest opportunity - ideally within seven (7) days of receipt of the complaint.

 

Preliminary Determination by the Commander

151. The Commander meets with the complainant in order to:

 

Clarify, as necessary, the act(s) constituting the unacceptable behavior.

Establish full details of any and all witnesses.

Ascertain what might constitute a reasonable resolution of the complaint.

Explore, if appropriate, whether the complaint could be resolved informally. While the Commander will not directly participate in an informal approach he/she may pass the dispute to another officer or such other party as may be agreed by the parties for mediation.

Explain the Commander’s options to the complainant.

Confirm that the complainant wishes to pursue resolution of the complaint through the formal procedure.

 

152. The Commander will decide, based on the above, whether the complaint warrants further investigation and if so whether to proceed:

  by using the legal/disciplinary process; 

or

by way of administrative action.

The preference of the complainant may be a factor in this decision.

 

 Legal/Disciplinary Process

153.    Where the Commander determines that the complaint constitutes credible evidence of a criminal offence or an offence against military law that ought to be dealt with by the legal/disciplinary process, he/she will initiate that process. This may involve reporting the matter to the APM for investigation by the Military Police or by the Garda Siochana.  Where the Military Police conduct an investigation their report will be forwarded to the Commander concerned who will deal with the matter in the normal manner for the investigation of offences under the Defence Act, as amended.

 

154.    After completion of a MP investigation, should the Commander decide not to proceed with the case due to insufficient evidence or other reason, he/she shall inform both the complainant and the person complained of, of his/her decision and the reasons for his/her decision. Where a Garda investigation does not proceed further due to insufficient evidence or other reason the Commander will ensure that the complainant and the person complained of are informed.

 

Administrative Action

155.    Before deciding to deal with a complaint through administrative action the Commander must first discount using the legal/disciplinary process

 

156     Where the Commander decides to deal with the complaint through administrative action he/she will:

 

Inform both parties of the decision and advise them when the matter will be investigated - normally within a further seven (7) days.

Provide the person complained of with a copy of the complaint.

Take such immediate measures as he/she considers appropriate to ensure that the behavior complained of cannot continue while the complaint is being investigated.

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

 

157  Commander’s Investigation When investigating the complaint the Commander will ensure that the principles of natural justice and fairness apply by proceeding as follows:

 

The complainant shall be afforded the opportunity of restating, adding to, clarifying or otherwise amending the complaint.

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

 

The person complained of may not be ordered to respond to the allegations. However, he/she will be informed that inferences may be drawn by the Commander from the absence of a response.

 

Statements will be taken from any reasonably available witnesses. Such statements, which will be recorded,  may be presented verbally or in writing.

 

Any response made by the person complained of will in turn be made known to the complainant, who may submit a reply to it.

 

158.  158.   Commander’s Decision         After due consideration the Commander will decide whether or not the complaint should be upheld and what administrative action if any is to be taken.  The Commander could decide to take no action. The guiding principle in deciding the extent to which the scale of sanction might be taken against an individual will be that of proportionality. If action is appropriate the range of administrative sanctions available to the Commander include one or more of the following:

 

Counselling and/or retraining in respect of the behavior, which may be recorded or unrecorded.

Caution about future conduct, which may be recorded or unrecorded.

Rebuke, which may be recorded or unrecorded.

Posting within the unit

Recommendation to superior authority for posting to another unit

Recommendation regarding suitability for promotion or particular appointment(s).

Recommendation regarding continued service in the Defence Forces.

 

159.    Person complained of is from another unit   Where the person complained of is from a different unit to that of the complainant, both Commanders concerned will need to collaborate on the matter. If an informal resolution is not possible (Ref para 151d) the complainant’s Commander takes the lead in the initial process as follows:

 

The complainant’s Commander will inform the Commander of the person complained of, of the complaint and how he/she intends to proceed, whether by the legal/disciplinary process or by administrative action.

 

The complainant’s Commander decides whether to report the matter to the Military Police (Ref para 153). If the Military Police investigate the complaint their report will be forwarded to both Commanders concerned in the normal way. Any action to be taken following receipt of this report will be a matter for the Commander of the person complained of, who will inform the complainant’s Commander of the outcome.

 

If the complainant’s Commander decides to proceed through administrative action he/she will conduct the investigation process. Depending on the outcome of this investigation he/she will forward his/her findings and where considered appropriate a recommendation as to applying any sanctions, to the Commander of the person complained of. A copy of these findings and any recommendations will also be forwarded to the next level in the chain of command (e.g. Bde HQ).

 

On receipt of these findings and any recommendations, the Commander of the person complained of will consider what administrative action, if any, he/she intends to take and will inform the complainant’s Commander of the outcome.

 

160.  Informing both Parties of the Outcome of the Complaint     The complainant and the person complained of will be informed of the outcome of the investigation, orally and in writing, by the Commander. This will include the Commander’s decision and the reasons for the decision being made known to both parties. In the case of the person complained of being from another unit (Ref para 159 above) this will be carried out by his/her Commander.

 

161.  Review by Superior Authority  A person to whom a Commander has awarded an administrative sanction under the authority of this Instruction, shall be informed of his/her right to apply to a superior authority for a review of the Commander’s decision and/or of the sanction awarded.

 

The superior authority in DFHQ or a Bde/Sve HQ shall be an officer superior in rank to the Commander and appointed by a general officer. In the case of a Battalion/Regiment it shall be the unit commander where the complaint was dealt with by a Company/Battery Commander.  In the case of all other units and Battalion/Regiment units where the unit commander dealt with the complaint it shall be the person appointed for that purpose by the GOC.

 

The request for review shall be initiated by written application which must be submitted to the Commander within fourteen (14) days of receipt of notification of the Commander’s decision and sanction. The request shall set out the grounds supporting the application for review.

 

The Commander shall forward the application, together with the completed investigation file, and his/her response to the grounds set out in the application for review, to the superior authority within seven (7) days of its receipt. The superior authority may, in his/her absolute discretion, interview the applicant and/or seek such further evidence from either the Commander or other person, including the complainant, as he/she considers necessary.

 

When the superior authority has examined the application he/she may:

 

  affirm the decision and the sanction imposed by the Commander; or

  quash the decision and/or the sanction; or

  affirm the decision and reduce the severity of the sanction imposed.

 

He/she may not impose a more severe sanction than that awarded by the Commander.

 

The superior authority shall notify the applicant and the Commander of the outcome of his/her review in writing and of the reasons for it, normally within one (1) month of receipt of the application.

 

162.    Report on a Complaint of Unacceptable Behaviour  When a formal complaint has finally been dealt with (to include a Review by Superior Authority, if any), whether through the legal/disciplinary process or through administrative action, the Commander of the complainant will complete a report, as outlined in Annex ‘C’ to this Instruction. This report will be forwarded and filed as follows:

 

The original copy will be placed in the Complaint File. The Complaint File will be disposed of in accordance with para 163 below.

 

A copy will be placed in the unit personal file of the complainant.

A copy will be placed in the unit personal file of the person complained of only where that person was awarded a recorded sanction under para 158, sub-paras a, b or c,  or a sanction under para 158, sub-paras d, e, f or g,  above.

Two (2) copies will be forwarded under confidential cover to the Bde Adjt, or equivalent, who will in turn:

 

(1) Forward a copy under confidential cover to DPS who will maintain a separate file for record and statistical purposes.

(2)   Retain a copy in a file maintained for record and statistical purposes.

 

Personal Record Sheets (AFs 108 and 43a) & Personal Files           No entries will be made in Personal Record Sheets (AFs 108 and 43a), at unit level or higher, relating to formal complaints dealt with under the administrative action procedure. Copies of Annex ‘C’ will not be placed in personal files at Bde, or equivalent, and DFHQ level other than unit personal files

 

Five (5) year limit of Annex ‘C’        With the exception of the original copy contained in the Complaint File (Ref para 163) all other copies of the Annex ‘C’ will be removed from unit personal files and Bde or equivalent / DFHQ files and destroyed after five (5) years from the date the Annex ‘C’ was signed by the Commander making the report.

 

163.    The Complaint File

Contents       The Complaint File shall contain all written submissions by the complainant and the person complained of, written or recorded statements of any witnesses, written decisions or comments of the Commander(s) concerned, written decisions following a review by a superior authority and the original report, Annex ‘C’, completed by the Commander.

Disposal         The Complaint File will be forwarded by the Commander to the Bde Adjt, or equivalent, under confidential cover who will have it placed in the DFHQ level (OAS or ORA) personal file of the complainant, as a permanent record. The file or any of its contents will not be made available for perusal by any member of a promotion board.

 

Reports of incidents of unacceptable behavior which are not the subject of a complaint

164.    Reports of incidents of unacceptable behavior which are not the subject of a complaint by a member of the Defence Forces against another will be dealt with under the above procedures in so far as they may apply. Action will be initiated by the Commander who will deal with the matter either under the legal / disciplinary process or under the administrative action process.

 

Rights under Section 114 of the Defence Act not affected

165.    The procedures provided for in this Instruction do not limit or affect the exercise of the rights of any individual as provided for in Section 114 of the Defence Act, as amended.

 

 

Further Information Available from http://www.military.ie/