grievance and dispute resolution

A workplace grievance is raised when an employee feels victimised at work. Grievances can be non-productive, costly, and damaging, and therefore it is important to have procedures in place to effectively handle and resolve them.

Ignoring a complaint and hoping it will either go away or resolve itself is not an acceptable response. Grievances raised by employees include allegations of sexual harassment, discrimination, privacy breaches, and workplace bullying. All organisations have an obligation to take reasonable steps to ensure they are exercising due diligence to prevent this type of behaviour, and having a robust, formal grievance procedure can be considered one of those steps.

Without proper grievance procedures, employees may not know if they can raise complaints, and if so, how they can raise those complaints. This could lead to increased absenteeism, low morale, decreased productivity and increased staff turnover as employees feel disenfranchised with the work environment and negative culture. For the employer, it could mean increased legal costs and penalties for breaches of legislation if they are unable to show that a complaint has been investigated and handled appropriately.

Employers must give a fair hearing and try to resolve the problem or they could face a claim for constructive dismissal. If an employee raises a grievance during a disciplinary hearing, then the employer may suspend the hearing until the grievance has been dealt with, although if both are closely related it may be more appropriate to deal with them concurrently. 

dispute resolution

Every modern award contains a dispute resolution clause and enterprise agreements lodged with the Fair Work Ombudsman (FWO) without such a clause will not be approved. Generally, the clause will provide for a process with the following stages: 

  1. employee(s) meet with their direct supervisor to discuss the grievance 
  2. failing resolution, the matter is discussed further with more senior management 
  3. failing resolution of the matter, the employer refers the dispute to a more senior level of management or a more senior national officer within the organisation 
  4. where the dispute remains unresolved, the parties may jointly or individually refer the matter to the Fair Work Commission (FWC)
  5. the employer or employee may appoint another person, organisation or association to represent them during this process. 

Employers should be aware of, and familiarise themselves with, any dispute resolution procedure that applies to their workplace. The Fair Work Regulations 2009 contains a Model term for dealing with disputes for enterprise agreements and can be used to develop a dispute resolution term in an enterprise agreement. 

There are significant benefits to having a fair and transparent dispute resolution policy, so even where no modern awards, enterprise agreements or other industrial instruments apply at a particular workplace, best-practice employers will implement dispute resolution procedures in employees’ contracts of employment or in company policy documents.

best practice: dispute resolution process

Employers and employees should keep detailed records throughout a dispute and make sure everything is recorded in writing to avoid any misunderstandings.

A best-practice dispute resolution process should:

  • be simple
  • allow appropriate stages so that matters can, wherever possible, be resolved at the workplace
  • encourage parties to agree a suitable process if the dispute reaches the FWC
  • provide the FWC with the necessary discretion and power to ensure settlement of the dispute if it remains unresolved after the early stages of the dispute resolution procedure have been attempted.

Best-practice dispute resolution outcomes should be:

  • quick - the issues should be resolved quickly rather than allowing them to escalate through inaction
  • fair - all relevant parties should be consulted so that all sides of the story are taken into account
  • handled sensitively - disputes should, where possible and when appropriate, be resolved in a confidential context in order to minimise impact on employees not affected by the dispute, and
  • transparent - the procedure should be made known to every employee. 

Important note: Where possible, dispute resolution procedures should not interfere with the continued operation of the business. Any dispute resolution clause in an agreement, contract or policy should require that work continues normally during the dispute resolution process, subject to any reasonable concerns about health and safety. Generally, the FWC does not authorise employees to stop performing work while a dispute is being resolved.

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