UNIVERSITY OF CAPE TOWN OFFICE OF THE OMBUD
TERMS OF REFERENCE
EFFECTIVE DATE:1 NOVEMBER 2021
1.1 The Office of the Ombud is an independent and impartial institution, established by the Council of the University of Cape Town, to provide a voluntary, confidential and informal service to all members of the university community, with the aim of securing the just, fair and equitable treatment of each and every member of the university community.
1.2 The Office of the Ombud provides its services to the university community (including Council; all staff; current and past students; visitors to the university and contractors), predicated on the principles of fairness.
1.3 The Office of the Ombud shall not investigate, arbitrate, adjudicate or in any other way participate in any internal or external formal process or action.
2.1 The Office of the Ombud provides a neutral, informal, confidential and independent environment where members of the university community may raise complaints or concerns and may seek information and guidance about any alleged acts, omissions, rules or other matters relating to the functioning of the University. Consequently, the Office is mandated to assist members of the university community who approach it in three distinct ways.
- First, the Office of the Ombud is mandated to receive complaints from members of the university community and, when appropriate, to assist to resolve disputes surfaced by such complaints through mediation. When facilitating such mediation with the aim of resolving a dispute, the Office must adhere to the following principles:
- The Ombud must remain neutral and impartial, and is not empowered to adjudicate a dispute, rule in favour of one or other party or impose remedies.
- When seeking to resolve a dispute through mediation, the Office is entitled to request and receive any information it may reasonably require to do so, whether in person (including but without being limited to interviews) or in writing, for the purpose of dealing with any complaint and shall be entitled to request and receive the assistance of the university in this regard.
- The Office of the Ombud facilitates the mediation of disputes in an informal manner, and while not bound by the formal rules of procedural fairness, must at all times strive to act in an even-handed and equitable manner.
- When mediating a dispute, the Office of the Ombud must maintain the confidentiality of a complainant, but if the mediation can only be facilitated by revealing the identity of the complainant to other parties to the mediation, the Office may reveal the complainant’s identity to such parties, but only if the complainant has given permission to do so.
- As the Office of the Ombud is required to remain neutral and may not impose an outcome on parties, it may not “name and shame” any party to the mediation process, whether the mediation is successful or not.
- Second, the Office of the Ombud is mandated to provide a “safe space” for members of the university community, by listening and providing a respectful and safe place for people to discuss their problems freely, helping them to clarify concerns and develop options, explaining university policies and procedures, making referrals to other offices – including disciplinary bodies – and coaching visitors on how to help themselves. In order to fulfil this task, the Office is entitled to request and receive any information it may reasonably require to do so, whether in person (including but without being limited to interviews) or in writing, for the purpose of dealing with any complaint and shall be entitled to request and receive the assistance of the university in this regard.
- Third, the Office of the Ombud is mandated to act as a catalyst for institutional change, specifically changes to policies, practices, attitudes, and aspects of institutional culture that may hinder the just, fair and equitable treatment of each and every member of the university community. The Office of the Ombud does so by gathering information while engaging in fulfilling its mandate in terms of sections 2.1.1 and 2.1.2 above, by analysing this information and identifying trends, and problems, and by submitting regular reports to Council on such trends and problems in accordance with these terms of reference.
3. Independence, impartiality and accountability
3.1. The Office of the Ombud and its head (the Ombud) are independent and must act without fear, favour or prejudice in exercising its duties. No person may interfere with the functioning of the Office.
3.2. The Office of the Ombud shall not take sides in any conflict, dispute or issue but shall consider the interests and concerns of all parties involved in a situation impartially with the aim of facilitating communication and assisting the parties to reach mutually acceptable agreements that are fair and equitable, and consistent with the policies of the University.
3.3. The independence of the Ombud is safeguarded by the following provisions on appointment, removal and lines of accountability.
- The Ombud is appointed by Council and can only be removed by Council, and only on the grounds of misconduct, incapacity or incompetence.
- The Office of the Ombud functions independently from administrative authorities and the University executive, and the Ombud reports directly to Council on its Office’s budgetary and administrative management.
- While the Ombud is independent, they remain accountable to Council, to whom they report regarding both administrative and budgetary functions. The Ombud accounts to Council, in part by submitting a yearly written report on the finances and activities of that office through the Chair on a date agreed upon by the Council and the Ombud.
- While accountable to Council, the Office of the Ombud functions independently with respect to case handling and issue management.
3.4. With due regard to the professional and support staff personnel policies governing the employment of the Ombud, the Chairperson of Council shall receive any complaints lodged against the Ombud by members of the university community. The Chairperson of Council must dismiss frivolous or irrational complaints against the Ombud but must table all other complaints – whether these complaints could lead to removal in terms of section 3.3.1 or not – to the full Council for consideration. Individuals who lodge complaints against the Ombud enjoy immunity from the confidentiality requirements to the extent set out in section 6.5 below.
4.1. In order to fulfil its role as a catalyst for institutional change, the Ombud is required to submit quarterly written reports to Council in accordance with section 2.1.3 above.
4.2. On request, the Ombud will provide feedback, while maintaining confidentiality, to the Vice-Chancellor and other leadership team members to inform them of the kinds of issues and trends the Ombud may be hearing about and to explain the relevance of such information, and to provide guidance.
4.3. The Ombud shall on receipt of complaints lodged against the Vice Chancellor immediately inform the Chairperson of Council of these.
5. Standards and Ethics
5.1. The Office of the Ombud staff shall adhere to The International Ombudsman Association (IOA) Code of Ethics and Standards of Practice. This code requires that the Ombud shall function independently of the organization, to be confidential and neutral, and to limit the scope of its services to informal means of dispute resolution.
5.2. The IOA Standards, Code, and Best Practices delineate minimum standards, and the Office of the Ombud shall always strive to operate to “best practices” and to serve the best interests of all concerned. The Ombud shall establish consistent procedures which shall be made available upon request. The Ombud shall publicise the confidential, independent, neutral and informal nature of their services through promotional materials, a website, and visible wall postings and provide a copy of the Standards and Procedures to each visitor.
6.1. The Office of the Ombud holds all communications with those seeking assistance in strict confidence and takes all reasonable steps to safeguard confidentiality. The Ombud does not reveal and must not be required to reveal the identities of the people who contact the Office of the Ombud. Communications between the Ombud and others (made while the Ombud is serving in that capacity) are considered privileged.
6.2. This privilege belongs to the Ombud and their Office, rather than to any party to an issue. Others cannot waive this privilege.
6.3. There are only two exceptions to this rule. First, as provided in section 18.104.22.168, where mediation between parties can only be facilitated by revealing the identity of the complainant to other parties to the mediation, the Office may reveal the complainant’s identity to such parties, but only if the complainant has given permission to do so. Second, the Ombud may waive confidentiality where the Ombud determines that there is an imminent risk of harm to human life.
6.4. The Ombud shall not be required to give evidence before a University tribunal about anything that he or she may have learnt in the exercise of his or her duties. The University will endeavour to protect the Ombud from subpoena by others, both inside and outside the university
6.5. Subject to the exception below, any communication between the Office of the Ombud and other parties relating to the fulfilment of the mandate of the Ombud as set out in section 2 above, is confidential. The obligation to respect this confidentiality binds all parties involved in such communication. The following exceptions are recognised:
- Nothing in this section prohibits an individual who lodges a complaint against the Ombud in terms of section 3.4 above, from disclosing confidential information to the Chairperson of Council, provided that this information is relevant to the complaint.
- Nothing in this section prohibits the Chairperson of Council acting in terms of section 3.4 to share the information received from a complainant with Council in the manner provided for.
The Ombud functions on an informal and off-the-record basis and shall be a resource for informal dispute resolution services. Whenever practical, the Ombud shall seek the resolution of the problem at the lowest level within the organisation. The Office of the Ombud does not keep records about individual cases for the University. Use of the Office of the Ombud shall always be voluntary and not a compulsory step in any grievance or University policy.
8. Exclusions, Authority and Limits of the Office of the Ombud
8.1. Authority of the Office of the Ombud
1. Initiating Informal Inquiries
The Ombud will be entitled to inquire informally about any issue concerning the University and affecting any member of the University community. Therefore, the Ombud may initiate informal inquiries into matters that come to his or her attention.
2. Access to information
The Ombud may request access to information related to visitors’ concerns from files and offices of the University and will respect the confidentiality of the information. Requests by the Ombud for information should be handled with reasonable promptness by the university departments.
3. Ending involvement in matters
The Office of the Ombud may decline to inquire into a matter or may withdraw from a case if the Ombud believes involvement is inappropriate for any reason.
4. Discussion with visitors
The Office of the Ombud has the authority to discuss a range of options available to the visitor, including both informal and formal processes. However, the Office of the Ombud will have no actual authority to impose remedies or sanctions or to enforce or change any policy, rule or procedure.
5. Access to Legal Counsel
The Office of the Ombud may require legal or other professional advice, from time to time, in order to fulfil its required functions, and in this regard the University shall provide such services. In the event that the Ombud in their individual capacity require legal or other professional advice, the professional and support services staff policies that govern the employment of the Ombud shall apply.
8.2. Limitations on the Authority of the Office of the Ombud
1. Receiving Notice for the University
Communication to the Office of the Ombud shall not constitute notice to the University. The Office of the Ombud shall publicize its non-notice role to the university. If a user of the Office of the Ombud would like to put the University on notice regarding a specific situation or wishes for information to be provided to the University, the Ombud will provide that person with information so that the person may do so her/himself. In extremely rare situations, the Office of the Ombud may have an ethical obligation to put the University on notice. This will take place only when there is no other reasonable option. In such an event, the Ombud shall first inform the Chairperson of Council of such a course of action.
2. Collective Bargaining Agreements
The Office of the Ombud shall not address any issues arising under a collective bargaining agreement (“CBA”), unless allowed by specific language in the CBA. This means that while the Office of the Ombud may provide services to trade union members, those services may not include addressing issues that are covered in the CBA. The Office of the Ombud may work with trade union members regarding all other issues not covered by the contracts, such as communication issues with co-workers.
3. Formal Processes and Investigations
The Office of the Ombud shall not conduct formal investigations of any kind. The Office of the Ombud staff shall not willingly participate in formal dispute processes or outside agency complaints or lawsuits, either on behalf of a user of the Office of the Ombud or on behalf of the University. The Office of the Ombud provides an alternate channel for dispute resolution.
4. Record Keeping
The Office of the Ombud does not keep records. Notes, if any, taken during the course of working on a case are routinely destroyed at regular intervals and at the conclusion of a matter. All materials related to a case should be maintained in a secure location and manner and should be destroyed once the case is concluded. The Ombud may maintain non-confidential statistical data to assist in reporting trends and giving feedback.
5. Advocacy & Psychological Counselling
The Office of the Ombud shall not act as an advocate for any party in a dispute, nor shall they represent management or visitors to their office. In addition, the Office of the Ombud does not provide legal or psychological assistance.
6. Adjudication of Issues
The Office of the Ombud shall not have authority to adjudicate, impose remedies or sanctions, or to enforce or change policies or rules.
7. Conflict of Interest
The Ombud shall avoid involvement in cases where there may be a conflict of interest. A conflict of interest occurs when the Ombud’s private interests, real or perceived, supersede, or compete with their dedication to the impartial and independent nature of the role of the Ombud. When a real or perceived conflict exists, the Ombud should take all steps necessary to disclose and/or avoid the conflict.
8.3 Retaliation against the Ombud or Service Users
1. All members of the constituencies served by the Office of the Ombud shall have the right to consult the Office of the Ombud without fear of retaliation or reprisal.
2. The Office of the Ombud should be protected from retaliation (such as elimination of the Office or the Ombud, or reduction of the budget of the Office of the Ombud budget or other resources) by any person who may be the subject of a complaint or inquiry.
In this document, unless context indicates otherwise:
- “University executive” means the Vice Chancellor, the Deputy Vice Chancellors, the Chief Operating Office and the Registrar.
- “Other leadership team members” means members of the “university executive” excluding the Vice Chancellor.
- “Trade union” means any trade union who has members who are employed by the University.
- “University community” includes University staff and students, anyone temporary employed by or providing a service to the University, trade unions, community organisations with significant links to the University, and members of the public with links to the University, which includes links that arise from living in close proximity to university properties and facilities, and links that arise from other significant engagements with university institutions, facilities, or services.
- “Serious misconduct” means unlawful conduct arising out of bad faith or gross negligence, dishonest conduct or improper conduct.
- “Incapacity” means a permanent or temporary physical or mental condition, or a legal impediment, that renders the office-holder unable to perform his or her duties of office efficiently and effectively.
- “Incompetence” means a demonstrated and sustained failure by the officeholder to perform his or her duties efficiently and effectively, with “incompetent” having a corresponding meaning.
#Council meeting of 16 October 2021