So you've got a problem? Complaints and grievances in Australian workplaces
by Kate Jenkins
Complaints, grievances and disputes are on the rise in Australian workplaces. Many disputes are ending up before quasi-judicial bodies such as anti-discrimination boards, federal and state industrial relations commissions and occupational health and safety tribunals, as well as in the courts themselves.
Grievances within workplaces can be non-productive, costly and damaging, regardless of the size of the business. Therefore, organisations need to have good working relationships aimed at preventing disputes from arising or if disputes do occur, to have procedures for effectively handling and resolving them.
Grievance procedures are formal procedures that an employer and their employees or representatives have agreed to follow to deal with expressions of dissatisfaction about a work situation. There is a long history of grievance handling procedures in place in more traditional industrial 'blue collar' environments. This is because such workers are generally covered by an Award or a Certified Agreement, which must contain grievance handling procedures as specified by the Australian Industrial Relations Commission. For example, s170LT(8) of the Workplace Relations Act 1996 makes it a requirement for certification of an enterprise agreement that it includes 'procedures for preventing and settling disputes…over matters arising under the agreement'. The parties can include any process they want, provided it serves the purpose of preventing and settling disputes over matters arising under the agreement.
Unfortunately, there is no comparative requirement on organisations not covered by Federal or State industrial instruments to have formal grievance handling procedures. This is problematic because an increasing number of grievances are being raised in these commonly "white collar" workplaces. Grievances often concern equal opportunity, occupational health and safety (including bullying) and more recently privacy issues. Therefore, there is an emerging need for formal dispute resolution procedures in the white collar environment.
General trends concerning grievance handling procedures
Due to the lack of explicit legislative regulation in this area, management responses to addressing grievances concerning white collar workers can easily simply involve 'turning a blind eye, hiding one's head in the sand, and hoping it will all blow over'. NSW Anti-discrimination Board, 'Grievance procedures: Why having a good one is important', Equal Time, No. 35, February, 1998.
In the current climate ignoring complaints is not an accept response because failing to address complaints promptly and effectively can have serious legal and reputational consequences. Issues commonly raised by white collar workers involve allegations of discrimination, sexual harassment, privacy breaches and workplace bullying. Another emerging issue in the white collar environment is 'whistle blowing,' or allegations of crimes such as theft and fraud.
Some legislation on grievances in the workplace
Equal Opportunity Laws
All organisations have an obligation under equal opportunity legislation to take reasonable steps, reasonable precautions and to exercise due diligence to prevent discrimination, harassment, vilification and victimisation occurring or continuing in the workplace.
An employer may be vicariously liable for discrimination or harassment which occurs in the workplace or in connection with a person's employment unless it can prove that it took all reasonable steps to avoid the unlawful conduct in question. Naturally, 'all reasonable steps' includes doing as much as possible to prevent discrimination or harassment happening in the first place. However, there is a strong argument that 'all reasonable steps' includes having an effective, formal grievance procedure that is followed.
Occupational health and safety
Similarly, all organisations have an obligation under occupational health & safety legislation to provide and maintain so far as is practicable a working environment that is safe and without risks to health, including without bullying.
The legislation covers not only employees, but also customers and contractors who enter the workplace. Employers are meant to take 'every practicable step' to prevent occupational health and safety issues arising. Again, 'every practicable step' includes having an effective formal dispute resolution procedure.
There is a range of legislation regulating handling of personal information. In the employment context much of the personal information held by a company is exempt from the operation of the Federal Privacy Act. For information that is covered by the Privacy Act, such as personal information about contractors and applicants, companies are required to have in place procedures to handle complaints and also to handle requests for access to personal information.
The importance of a good grievance handling procedure
Without proper grievance procedures a number of potential problems may arise. These include: (a) employees may not know whether they can or should raise complaints;
(b) employees will not know how to raise complaints;
(c) increased absenteeism, increased leave due to stress, low morale within the workforce, dysfunctional teams not performing to expectations, increased applications for transfers and a higher turnover of staff;
(d) legal costs, management time and damages/ penalties for breach of legislation if they can show that their organisation has not investigated a complaint adequately, (which may arise even if the complaint turns out to be unfounded).
Further, in some situations the courts are prepared to find that contracts of employment that permit procedural unfairness in grievance handling procedures are unfair, harsh and unreasonable, and award significant amounts of damages in this respect. Murphy v Australian Guarantee Corp Ltd (2000) NSWIRC 162; Fiona Hall v Department of Correctional Services, Victorian Div – VI 889 of 1994
Practical steps organisations can take with respect to handling complaints
Although every complaint is different and therefore responses will vary depending on the circumstances of each individual case, there are a number of policies and precautions organisations can put in place that will ensure grievances will be more effectively handled. The following are guidelines that may be followed to ensure that inappropriate behaviour complaints are managed in an effective, efficient and lawful way.
Who handles the complaints?
The organisation should appoint nominated people as responsible for the handling of grievances/complaints. This ensures that all employees have a 'contact point' if they have a complaint.
Persons responsible for the handling of complaints must:
(a) have a clear understanding of relevant laws and regulations about conduct (such as equal opportunity and occupational health & safety principles);
(a) respond to any complaint quickly, professionally and in confidence to ensure compliance with other pieces of legislation such as the Privacy Act;
(b) comply with relevant company policy;
(c) be impartial. There should be no conflict of interest in investigating the complaint.
Hints on developing a grievance handling procedure
(a) The scope of the disputes procedure must be clear. For example, it is necessary to set out what steps will be taken, and by whom.
(b) All complaints should be treated seriously, be they formal (written) or informal (verbal) complaints.
(c) The interests of all parties must be considered.
(d) Measures should be in place to ensure complaints are handled confidentially and victimisation is avoided.
(e) Time is of the essence. Measures should be in place to ensure complaints are managed effectively and efficiently.
(f) Document all facts.
(g) Notify parties of the outcome.
(h) Disciplinary measures should be appropriate and fair. This ensures all employees have confidence in the process.
(i) Monitor ongoing behaviour.
Benefits of a good grievance handling procedure
Grievance handling procedures give employees an opportunity to redress injustice and provide a means to ensure and restore good working relationships. If complaints are not successfully managed in-house, they may end up in an external system, for example, an equal opportunity tribunal. Further, an effective and trusted grievance procedure will mean that grievances are more likely to surface earlier, be resolved earlier, and be less likely to escalate. A good grievance handling procedure will therefore mitigate the potential of costly and time consuming litigation, and can minimise the company's exposure by avoiding litigation.