Posted on December 8, 2023
Summertime and the living (at work) can be tricky…….all the socialising that the good weather brings, both inside and outside work, can cause people to act up. For employment lawyers, HR departments, SLTs and Boards, tis often the season for an increase in dealing with employee complaints about the behaviour of colleagues.
When an employee complaint is received, it can be tempting to downplay it, divert attention away from it or, worst of all, ignore it entirely in the hope it will self-destruct. However, as two recent Employment Relations Authority decisions have highlighted, employers de-prioritise, bury their heads in the sand or retaliate in response to a complaint at their peril.
Surely we don’t need to investigate that! Hall v Kiwi Rail (November 2023)
Mr Hall made a complaint of bullying in the middle of a number of other problems that had arisen in his employment. Despite asking for an investigation, Kiwi Rail felt there were explanations for the things Mr Hall was complaining about. After a basic consideration of the issues, Kiwi Rail took no further action and never formally investigated or concluded whether there was or was not bullying.
The Authority held that the failure to investigate was unfair to Mr Hall and that this amounted to a constructive dismissal. Mr Hall was awarded $20,000 compensation plus his lost wages.
Can’t we just fire them? PPK v Communication & Training Services Limited (October 2023)
If the time and costs of a case that ends in a substantial monetary award is not motivation enough for an employer to take complaints seriously, reinstatement might be. The employee in this case was summarily dismissed after making a “whistleblowing” complaint that was responded to with disciplinary action, as the employer felt the complaint was unfounded. No investigation of the complaint was done.
The Authority agreed that the employee had a well arguable case, and the employee was reinstated to his position on an interim basis pending a hearing.
Lessons
As well as having detailed complaints processes in place, employers must make this known to employees and follow the processes in a timely way when complaints are received.
This is the case even where other issues are swirling in the employment relationship. Frustration with or suspicion of the complaining employee does not cancel out the obligation to investigate. As a minimum, a complaints policy or process should include:
- What types of things an employee may legitimately complain about
- Who the complaint should be made to and how – whether formal or informal
- Who the investigators and decision makers may be and how conflicts of interest will be dealt with
- Assurance complaints will be dealt with promptly and sensitively and clear guidance on how confidentiality and other protections for the complaining employee will work
- What the usual steps are for the employer to investigate once the complaint is made
- How records will be taken and kept during an investigation
- What potential consequences could be if the complaint is or isn’t upheld and the fact that malicious complaints may be the subject of disciplinary action against the complainant
In our view, particularly with the Authority and Court getting more and more clear about an employer’s obligations in this area, it is high time for employers to appreciate that encouraging employees to raise complaints promptly and safely in accordance with good and well known process, is more likely to allow for relatively straightforward resolution of workplace behaviour problems.
