03
Oct
2016
article

4 steps to resolving workplace disputes

Employees have the right to expect their workplace to be free from discrimination and bullying. The challenge for employers is ensuring complaints are treated with the individual response each situation deserves. Steve Bell from Herbert Smith Freehills shares four steps to resolving workplace disputes.

Step one: Determine the type of investigation required

The first step for all employers is to determine whether or not a complaint or concern warrants a formal or full-scale investigation, or whether the issues can instead be addressed through less formal, mediated discussions between the workers involved.

Managers confronted with a complaint can ask themselves three key questions:

  1. What do our policies and procedures provide for in these circumstances?
  2. If we have flexibility around how we respond, do we need to get to the bottom of all the facts in this situation, or is this more about getting the involved people working together productively     and harmoniously again?
  3. Even if this particular issue can be quickly resolved, might there be a broader systemic risk in the way our people are treating each other, which needs a proper investigation?

It’s also important for managers to remind the involved parties that there can be no victimisation during, or as a result of, an investigation process. Affected individuals cannot retaliate or victimise each other; make that clear, and make it known that everyone will have their chance to be heard.

Step two: Follow through on internal procedures

Whatever the case, employers will need to ensure compliance with any internal grievance procedures. Ask yourself, what policies and bullying/grievance procedures are already in place and do I understand how to comply with them? Once you have the answer, make sure you apply them.

Another thing to consider at this stage is whether or not to engage the company’s internal or external lawyers, in particular when it comes to managing the process of document creation, and the subject of legal professional privilege, which can be a complex issue. Early legal assistance may allow for a more effective investigation process and help manage legal risk and final outcomes.

Step three: Identify the core of the complaint

Next, the employer should focus on identifying what is at the core of the complaint or grievance. Invariably, an employee can feel that they are wronged on one, some, or all of an emotional, practical, and even a career level, so it will be important for the employer to specifically determine what they need to investigate, and understand how any resolution will be communicated or effected.

A complainant approaching the investigation process might expect full disclosure of all outcomes, even asking to see all notes, documentation and reports. Employers need to be careful to avoid making promises about providing copies of any such information, to avoid setting the wrong expectations.

Step four: Focus on the long-term goal – resolution

The next step is to scope out the investigation to determine exactly what it might look like – whether that’s formal, informal, substantial or low-level.

Should the employer decide that a full-scale investigation is required, they need to appreciate that the process is, first and foremost, driven towards helping the business look after the safety and welfare of its employees.

The employer has to approach this with the sole aim of meeting these duties and, where possible, resolving the complaint: driving towards the goal of reconciling the parties and getting them working together again should be a key focus.

Be aware of potential legal traps

There are a few traps employers need to be aware of right from the start:

  • Trying to cover too many matters in one investigation, or not properly scoping. Trying to conduct a single investigation into all possible areas of concern which might relate to the issues arising from the original complaint may not be appropriate. There isn’t necessarily a one-size-fits-all approach: rather, any investigation needs to be carefully scoped, and the better approach may be to deal with the initial core complaint under one investigation, with other, broader, matters dealt with under a separately-scoped investigation.
  • Be aware of current legislation – there’s a steady uptick of bullying complaints through the Fair Work Commission. Employers need to ensure they’re prepared should the day come when it’s their business in the spotlight. They need to have a clear bullying policy in place, including a plan for responding to complaints as they arise, and they need to offer all staff the training to support that policy. It’s part of the fabric of what it means to run a business now – complaints may well be made; some well-founded, but some possibly not. All employers need to have a clear and well-communicated plan for how they’re going to respond, regardless.
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About the author

Herbert Smith Freehills

Partner

Steve Bell is a partner at Herbert Smith Freehills, advising and representing businesses in relation to all aspects of safety regulatory law. Based in Melbourne, Steve co-leads the Asia Pacific Work Health and Safety team which helps clients manage risk...

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