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Interpersonal
Relationships in the Defence Forces |
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Civil Legislation and the Defence Forces |
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General Statement of Policy |
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Superior / Subordinate Relationships |
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Sexual Behaviour of Members of the Defence Forces |
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Section
4 |
Discrimination |
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Section
5 |
Sexual Harassment and Harassment |
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Section
6 |
Bullying |
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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.
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.
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).
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.
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.
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/