When a worker makes a complaint to their employer, the consequences of mishandling that complaint can be significant.
Mishandling a complaint can result in a worker feeling that their concerns are not being taken seriously, and the situation can quickly escalate to a dispute or claim with bodies such as Fair Work Australia. Such claims can include:
- Unfair Dismissal claims;
- Stop Bullying Claims;
- Unfair contract claims;
- Discrimination claims; and
- Workers compensation claims.
Even if the worker is unsuccessful in their claim, the costs and time involved in defending such a claim can be considerable, and there is a risk of the issue spreading, and negatively affecting workplace morale and culture.
All too often we are asked to advise on workplace disputes that likely could have been avoided had they been dealt with properly in the first place.
But that can be easier said than done if you don’t know how to address a complaint. For example, you might be a small business owner and you may never have had to deal with a workplace complaint before, or you may be a HR representative new to the business, dealing with a complex and sensitive complaint all on your own. In those circumstances the receipt of a complaint can be a daunting experience, but it doesn’t have to be. Understanding the proper steps can make the process easier, and if you’re prepared, you can approach the complaint professionally (and with empathy) and mitigate the risk of the issue escalating.
Whilst not all situations are the same and may require additional considerations, here are some general tips to help address a workplace complaint:
Do you have a policy?
If not, a well drafted grievance policy and procedure will assist you to ensure that you handle the complaint properly and procedural fairness is adhered to. A well drafted grievance policy will not only give employees a clear idea of what they should do if they have a grievance, but also help keep management on the right side of workplace laws. You might also have policies that deal with specific issues such as bullying and harassment or discrimination. Your policies can be as simple or complex as you like, but they must be understandable to the people who work for you and be legally compliant. It’s also important that management and staff are aware of the policies and you refer to them throughout the complaints process to ensure that you adhere to processes and timelines.
You need to ensure you understand the complaint.
Listen attentively. Don’t interrupt or try to fix the problem, or assume you know what they are talking about, before the complainant has had a chance to explain it fully. Let them talk until they’ve finished. Listening shows that you are taking the complaint seriously and that you want to resolve the issue. After listening, it is important to ask questions in order to gain a better understanding of the situation. You might also explain to the complainant that you would like to write some notes to make sure you understand the complaint correctly and then confirm your understanding to the complainant.
Be respectful of the complainant’s time and feelings.
Don’t make assumptions about what the complainant is thinking or feeling. Ask open-ended questions to get more information. You also should ensure you don’t just brush off the complaint. What might seem like a meaningless issue to you, might not be for another person. In addition, minimising an issue can lead to not taking necessary steps to prevent something from happening. This could have disastrous consequences for all parties, and the business.
Ask the complainant what they would like to see happen.
Sometimes people don’t want you to do anything. Unfortunately, this might not always be possible. For example, let’s say the complaint relates to allegations of sexual harassment or bullying. If you don’t deal with the allegations, you might leave yourself or the business open to a lawsuit with respect to the issue complained about, or a later issue if dealing with a serial perpetrator. You should ensure managers know how to identify issues such as sexual harassment and respond appropriately. See our article on sexual harassment.
Document the complaint.
It is important to keep track of any communication related to the complaint, including emails, text messages, and meeting notes.
Provide clear timelines to the complainant and updates.
If you’re not sure what steps you need to take next, let the person know that you will consider the next steps and get back to them with further information. Ensure the complainant is okay with that and check if they need any other support in the meantime. Don’t forget to get back to the person. It is important you follow up on any promises you make to build trust and ensure the person making the complaint does not feel like you don’t care, as this can cause feelings of resentment and lead to the complainant taking other action. Depending on the seriousness of the allegation, you may need to consider workplace health and safety and whether the complainant and the alleged perpetrator of any behaviour need to be separated whilst at work and whilst the complaint is being investigated.
Form a plan for how to gather evidence and interview the person the complaint is about.
You’re then going to have to consider how you address the complaint with the person being complained about. It is important that all parties are provided with procedural fairness. That means not assuming the person being complained about is guilty, or the person making the complaint is being dramatic. You need to put assumptions aside at this time, to ensure the complaint is dealt with fairly. You will also need to consider confidentiality issues to make sure knowledge of the complaint does not spread through the workplace.
Check any inherent biases or potential conflicts of interest.
It is important here to be introspective, and make sure that you (or the person that will be investigating the complaint) are actually able to do so in an objective way. This is particularly important in small businesses or small teams, or where the investigator has known the persons involved in a complaint for a long time. If there are any concerns regarding potential biases (or that there is a risk of the perception of bias), we recommend businesses consider engaging a professional investigator, or someone who is not involved in the team to conduct the investigation. Consider if you need to engage a lawyer. See point 13 below.
Do you have the capacity to deal with the issue?
As with the above question, this is something to really consider. If the allegation is about physical violence in the workplace, sexual harassment or assault or touches on criminal allegations (such as fraud), it is important to consider whether the issue needs to be escalated to a specialist. For example, an allegation involving assault may require a trauma-informed approach to the investigation and a different approach, whereas a fraud investigation may require a different set of skills. It is important you assess your capabilities at the outset and identify if you need external assistance.
This may seem like an obvious step, but it’s important that it is done correctly. Gathering evidence includes interviewing witnesses, reviewing documents and videos, and analysing any other relevant information. An employer should not delay gathering evidence, as it can help to ensure a fair and timely investigation. Evidence gathered from witnesses will require you to impress upon those persons the confidential nature of the process, and that they are not to speak to any other employees about the incident(s) or your meeting with them. The evidence collected can also be used to determine whether there is a need for further action, such as disciplining or terminating an employee.
Do any of the persons involved require an interpreter or other type of assistance?
If a dispute involves employees who do not share a common first language, or have English as a second language, it may be necessary for an interpreter or other type of assistance to be provided in order to ensure that everyone involved is on the same page, and there are no misunderstandings about what exactly is being alleged, or what a person’s response is to those allegations. Employees may have other barriers to responding effectively, including disabilities, and may understandably experience anxiety during this process, which may impact their ability to respond to questions verbally in a clear and concise manner when put on the spot. This may be particularly relevant where the person is the subject of the complaint. It is important not to assume they understand what is being put to them to ensure procedural fairness is provided.
Consider if you need to brief a lawyer.
In order to ensure that workplace complaints are handled fairly and in accordance with the law, it is important to follow a set process. If you’re not sure what to do, a lawyer can help you determine the next steps, which may include gathering evidence, interviewing witnesses or briefing someone external to carry out a workplace investigation. Briefing a lawyer doesn’t mean you have to file a lawsuit; it just means getting legal advice about your rights and options. They can also brief a workplace investigator and there may be advantages in them doing so rather than you directly engaging the workplace investigator. This is something you can speak with your lawyer about. It also doesn’t need to cost you a lot of money, and it’s often much more economical to brief a lawyer at this stage than if the issue ends up in a tribunal or court.
Consider if you, management and the rest of your staff require training to upskill in this area.
It’s best to do this before something goes wrong as it’s not the kind of thing you should be learning on the job without any support.
Management should ensure that adequate training is provided to all staff so that they are able to identify and resolve complaints and grievances before they become a problem. By providing training that focuses on the prevention of workplace complaints and grievances, employers can help to create a more positive work environment while also protecting themselves from potential legal action.
The above is general advice only, and may not be relevant for all types of complaints received by an employer. If you need advice tailored to your specific circumstances, please contact the team at TLB Law & Co.