Introduction
What is ‘fair’?
The rules of natural justice
Grievance handling principles
Following company policy
Introduction
When told that M had victimised a female employee, the HR Manager wasn’t surprised. The woman’s complaint of sexual harassment had been upheld and M had been warned. Now, it seemed, he was paying her back.
M was dismissed but went to the NSW Industrial Relations Commission (IRC), alleging that it was unfair. He was awarded $80,000 (one year’s salary).
The IRC found that the process employed to deal with the complaint was unfair because:
- The HR Manager had decided M was guilty before hearing his side of the story.
- The other two grievance handlers had believed the alleged victim’s story and ignored almost everything M had to say, even after a witness told them that at least one of the allegations was untrue.
- A letter sent to M contained a summary of the allegations, but no places, times or dates.
- There was insufficient detail in the allegations.
- According to the company’s guidelines, the HR Manager should not have handled the victimisation complaint because of her involvement in the original harassment complaint.
- The other grievance handlers had little knowledge of the company’s dismissal policy and had not even paid ‘lip service’ to it.
- Grievance handling was left in the hands of three people who did not have the necessary expertise.
A contract of employment that permits such procedural unfairness in relation to dismissal of employees was found itself to be unfair, harsh and unreasonable.
Murphy v Australian Guarantee Corp Ltd [2000] NSWIRC 162
Poor grievance handling can have costly consequences. Morale and productivity can take a dive while staff turnover and absenteeism go through the roof.
And nothing undermines staff confidence in the grievance handling process more than a perception that the process, as implemented within the organisation, is unfair.
What is ‘fair’?
Substantive fairness concerns the outcome and procedural fairness applies to the process by which it is determined.
H, a correctional officer, was dismissed for having a relationship with an inmate. She admitted the affair but said she felt powerless to stop it. She argued that her dismissal was harsh, unjust and unreasonable because:
- she was working in an area normally staffed by senior officers because it housed prisoners with special needs
- she was young and inexperienced and had had little training or supervision
- counselling for employees having problems was inadequate
- she had a good employment record.
The Victorian Industrial Relations Commission decided that, while H’s dismissal was fair, the process was unfair. It said that an employer must consider any mitigating factors. In H’s case, mitigating factors included her lack of training, supervision and counselling. Her past employment record and achievements and future potential were also relevant.
H was awarded $5,000.
Fiona Hall v Department of Correctional Services, Victorian Div — VI 889 of 1994
In contrast, the NSW Industrial Relations Commission was satisfied that N’s dismissal was both substantively and procedurally fair. N, a senior executive, was dismissed for pinching a colleague’s bottom.
The touching was deliberate and N didn’t deny it. He was sacked after an investigation in which he was represented by his lawyer who was present when witnesses were questioned.
The court said that N’s dismissal was substantively fair because:
- Westpac had clear, well publicised guidelines stating that sexual harassment could lead to dismissal
- a transfer was not possible because his skills were too specialised
- the evidence proved that the harassment had occurred.
The dismissal was procedurally fair because:
- Westpac had interviewed all witnesses
- N was informed about the allegations and the evidence of the witnesses
- he was given an opportunity to respond to the allegations with support/legal representation
- Westpac had told him what written records they were keeping.
Naunton Thomas v Westpac [2000] NSWIRC.
The rules of natural justice
The rules of natural justice apply to decisions affecting people’s rights and interests. Under the rules, the person complained about must know what the allegations are and who made them. Without this information they cannot defend themselves.
All parties have a right to put their case. All relevant evidence must be considered while irrelevant matters should not. The person who made the complaint should not determine the charge, or the outcome, and the person deciding the outcome should be impartial.
Finally, the decision must be fair and just.
Grievance handling principles
Grievances should be handled confidentially, impartially and sympathetically. A breach of confidence can damage a person’s reputation and prospects. Confidentiality covers records and the manner in which they are stored and used. All parties, including the complainant and the person complained about, have a responsibility to maintain confidentiality.
Grievances should be handled by someone who is, and who is accepted as, impartial. The first question a grievance handler should ask is: ‘Am I the right person to handle this complaint’?
Grievances must be handled sympathetically, seriously and sensitively. A person doesn’t get a fair hearing when their complaint is dismissed as trivial, time-wasting, ridiculous, or worse. Complaints are not a nuisance — they provide a valuable opportunity to resolve potentially damaging conflicts and maintain a productive workforce.
Fairness (and effectiveness) involves timeliness.
S repeatedly sent letters and flowers to a workmate, even though she returned them and complained to the HR Manager.
Six months later, and still no action, she threatened to resign. S was then dismissed.
S successfully argued unfair dismissal. The AIRC found that the company had denied S procedural fairness in failing to address the complaint with him in a timely manner, and, when it did respond, in the process which had resulted in his termination. On appeal the Full Bench upheld the AIRC’s finding that had the company responded earlier it may have resulted in a change in S’s behaviour, have spared the victim distress, and resulted in a less drastic remedy than termination of employment. However, it reduced the amount of damages from 6 months to 10 weeks pay because S’s behaviour had contributed to his dismissal.
V Smith v Grand Hyatt Hotel PR904136, 10 May 2001
Following company policy
Grievance handling procedures give employees an opportunity to redress injustice. They provide a means to ensure or restore good working relationships. So long as the policy is followed, all parties know that the process by which complaints are handled is fair.
Managers and supervisors should resist the temptation to bypass procedures.
Two workers complained that a third had damaged their lockers and stolen the contents. Their supervisor got them all together to sort out the problem. The third worker denied the allegations, however, and a heated argument broke out. The two complainants were sacked for their behaviour at the time.
The AIRC found that their dismissal, compared with the third worker’s severe caution, was substantively unfair: it was unjustly disproportionate to the offence. The Commissioner criticised the supervisor for bringing all three together in a meeting. He said they should have been able to put their cases separately.
J Whitling v South Pacific Tyres PR903454, 12 April 2001
And the NSW Fire Brigades paid $40,000 when they bypassed their grievance procedure and sacked an employee who had complained about race discrimination. The compensation was awarded for victimisation even though the Equal Opportunity Tribunal found no evidence of race discrimination (Shaikh v Fire Brigade 1995).
