What common sense steps can managers and HR professionals take to ensure they manage complaints and grivances to prevent legal action? Joydeep Hor and Carla Seymour have the answers.
Workplace grievances reflect the variety of human interactions that trigger them. From extremely serious unlawful conduct to relatively minor behaviour that is nonetheless annoying and unacceptable in the workplace, workplace grievances are difficult for employers to manage, whatever their size or level of resources and in-house expertise.
The key for employers is flexibility in grievance policies and procedures, knowledge of legal obligations and legal risk and awareness of simple, common sense steps that they can take to manage complaints and minimise poor staff morale and turnover, potential liability and adverse publicity for the business.
Developing appropriate policies and procedures
Employers need to establish policies and procedures that reflect and suit the size, resources and structure of the business. A generic grievance procedure needs to be sufficiently flexible to accommodate the range of complaints that will be made. At a minimum, good grievance procedures:
are administered by skilled, trained personnel
are clearly documented so that employees understand the process for making complaints and the steps that will follow
ensure grievances are treated fairly, consistently, confidentially and expeditiously
are procedurally fair, that is, each party knows the allegations against it and has the opportunity to respond
allow the parties to a complaint to have a support person to attend meetings about the grievance
allow informal and formal options for dealing with grievances including informal discussions, conciliation or mediation and formal investigation
ensure that no employee who makes a complaint will be disadvantaged or victimised as a consequence.
Whatever happens in the process of managing a workplace grievance, the message is – document everything. Employers need to keep a very clear and detailed paper trail of the process followed to resolve the grievance.
Effective mediations and conciliations
There is no legal imperative to settle a dispute in conciliation or mediation. Both parties must want to settle the matter and unfortunately, not all disputes can be settled by collaboration and compromise.
Some grievances may be mere misunderstandings about what behaviour is or is not appropriate in the workplace and can be resolved internally through discussion with an HR Manager or other appropriate manager, or through mediation with the assistance of an independent mediator.
However, there are circumstances where the alleged conduct of an employee is of such a serious, sensitive or potentially volatile nature, that attempts at conciliation or mediation are just not appropriate. If the parties to a grievance are very angry, distressed, depressed, anxious or hostile towards each other, attempts at resolving the matter by conciliation or mediation internally within the business are not only likely to be ineffective, they can also lead to complaints by the employee against the employer for failing to take the complaint seriously. The key here is to engage a qualified external investigator to investigate formally and keep the parties at arms length. The employer can then make an informed decision about what action to take based on the findings in the investigation report.
Adverse action claim risks
Practitioners in HR and workplace law are by now well aware that the “adverse action” provisions of the Fair Work Act 2009 allow an employee to bring a claim if an employer dismisses or otherwise disadvantages the employee because the employee has “made a complaint in relation to his or her employment”. It is up to the employer to prove that any adverse action was NOT taken for that reason.
While much has been made of increased legal risk that these provisions create for employers, the best way for an employer to defeat such a claim remains as it has always been – to follow good grievance procedures that include the points raised in this article, to never victimise an employee for making a grievance and to meticulously document the process, so that if necessary, the employer can prove that any disciplinary action taken was based on sound, consistent, fair and impartial processes.
About the author
Joydeep Hor is managing principal of People + Culture Strategies. For more information phone +61 2 8094 3101 or email firstname.lastname@example.org. Cara Seymour is senior associate at People + Culture Strategies. For further information email email@example.com
PCS will be conducting a webinar on “Responding to workplace grievances: options and obligations” on Tuesday, 9 October 2012 at 12pm AEST.