Managing complaints and grievances
Beyond the obligation of businesses and organisations to provide safe workplaces to all employees, there are financial reasons to implement grievance and complaint policies.
A Harvard Business School study in 2015 entitled ‘Toxic Workers’ showed that employees who demonstrate incivility and other toxic behaviours towards their co-workers have an outsized impact on a team, even above that of a ‘star’ performer. The study shows that an employee with conduct or capacity issues may have, on average, a greater negative financial impact than the positive impact of a ‘star’ employee. The bottom line is there is good business sense in efficiently addressing complaints and grievances amongst employees.
An effective grievance policy allows a business to clearly define the rights and responsibilities of employees to raise issues in the workplace that may affect their safety, well-being, or productivity. It sets a tone for workplace culture, which can help to minimise the reputation and financial risks associated with ineffective or inapt complaints handling processes.
While there are many possible formulations of a complaint or grievance handling policy, a grievance policy may generally:
- Set out the scope of the policy
- Reference relevant laws / policies
- Define the relevant terms
- Explain the overarching principles
- Outline the grievance procedures
- Address compliance expectations
The absence of a grievance policy does not prevent employees from raising complaints or grievances. However, without guidance from the business or organisation, managers and workers may respond to situations differently. In some cases, the absence of a grievance policy or its implementation may heighten the risk of an employer being found vicariously liable for harm caused in the workplace.
Managing flexible arrangements
Flexible working arrangements can benefit both employers and employees.
From the outset, it is important to distinguish between ‘flexible working arrangements’ and ‘individual flexibility agreements’. Flexible working arrangements may be requested under the National Employment Standards, and if agreed do not affect the modern award or enterprise agreement relevant to the employee. Individual flexibility agreements, on the other hand, allow employees to vary certain terms of modern awards or enterprise agreements to better suit their needs.
Examples of flexible working arrangements include:
- changing hours of work to fit the care needs of children
- allowing job-sharing arrangements
- permitting working from home
The Fair Work Act 2009 (Cth) sets out the circumstances that allow an employee to request flexible working arrangements:
Requests for flexible working arrangements
…(1A) The following ar the circumstances:
- the employee is the parent, or has responsibility for the care, of a child who is of school age or younger;
- the employee is a carer (within the meaning of the Carer Recognition Act 2010);
- the employee has a disability;
- the employee is 55 or older;
- the employee is experiencing violence fom a member of the employee’s family;
- the employee provides care or support to a member of the employee’s immediate family, or a member of the employee’s household, who requires care or support because the member is experiencing violence from the member’s family.
Special rules also apply to casual employees as well as parents or carers of children returning to work after taking leave in relation to the birth or adoption of the child.
Employers who receive a request for flexible working arrangements may need to comply with any terms in a modern award, enterprise agreement, or employment contract as part of their consideration of it. A response must be provided within 21 days, outlining whether the request is approved or refused. The employer may refuse a request for flexible working arrangements only on reasonable business grounds.
Managing health issues
Irrespective of whether an illness or injury is contracted or sustained at work, employers have responsibilities with respect to managing health issues. There are a number of considerations for employers, including:
- duties under work health and safety laws
- workers’ compensation liability
- privacy issues
- discrimination issues
- fitness to return to work
When employees are ill or injured, employers generally must consider the following questions:
- What are the inherent requirements of the employee’s position?
- Are reasonable adjustments are possible?
- Is there unjustifiable hardship by any adjustments?
The legal risks for employers in managing ill and injured workers are real. They include:
- Unfair dismissal claims in the Fair Work Commission;
- General protections claims in the Fair Work Commission;
- Unlawful termination claims in the Fair Work Commission;
- Workers’ compensation claims;
- Discrimination claims in an anti-discrimination commission or tribunal, such as the Australian Human Rights Commission (AHRC) or Queensland Human Rights Commission (QHRC);
- Breach of contract claim in a court; and,
- Enforcement action under work health and safety laws.
Managing employee performance
Performance management ought to be seen as a continuous process, which contributes to the overall effectiveness of a business or organisation. For employers, managing performance can ensure goals are met and priorities understood. For employees, it can mean reaching their potential and advancing in their career.
Implementing a performance management system can be difficult for employers, and potentially confronting for employees. For this reason, communication is often essential to ensure the formal and informal aspects of performance management processes are understood and communicated, which can be aided by a performance management policy. It can assist to explain the processes for managing performance and how standards are set, as well as outlining how employees will be supported within their roles and also to develop further skills.
When an employer fails to properly manage performance issues, it can be more difficult to satisfy a court or tribunal that disciplinary action was fair, just and reasonable. For this reason, a performance management system will generally have processes for accurate records of employee progress, as well as any attempts to address employee underperformance.
Managing and preventing misconduct
Misconduct by employees can pose legal, commercial, and reputational risks to employers. It is therefore important for employers to manage and prevent misconduct that affects the workplace.
Developing and implementing a code of conduct for employees may act as the starting point for managing and preventing misconduct. However, certain laws may impose greater burdens on employers and require greater management action. For example, employers may be vicariously liable for sexual harassment perpetrated by their employees if they do not take “all reasonable steps” to prevent it. Merely having a policy in place prohibiting sexual harassment, and even providing some training, has been found in the past to not constitute “all reasonable steps”.
In circumstances where misconduct is suspected or an employee is the subject of a complaint, it is prudent for employers to ensure any disciplinary process is fair and defensible. The steps in a disciplinary process usually involve some or all of the following six steps:
- Define the complaint or grievance
- Undertake a workplace investigation
- Allow an opportunity to respond
- Make findings about the issues
- Decide on disciplinary action
- Deal with any disputed decisions
While an employer may wish to act immediately in a situation involving potentially serious misconduct, it is essential to ensure proper processes are followed to minimise the risk of a successful challenge to a disciplinary decision