How a Workplace Mediation can prevent disputes from escalating to formal proceedings

Workplace disputes that escalate to legal issues are a waste of an employer’s valuable time and financial resources.

Even if a tribunal or court finds an employer faultless, there is inevitably cost involved in defending the case as well as attendant lost productivity. Workplace disputes can also significantly impact staff morale and workplace culture.

Engaging the services of a skilled workplace mediator can prevent a workplace dispute escalating to formal legal proceedings.

Workplace mediation is a confidential and structured process in which an independent and impartial third party facilitates discussion between the various individuals involved.

This can be a more cost effective and less time-consuming process than formal proceedings.

A recent case before the Fair Work Commission highlights the importance of employers making every attempt to resolve a workplace disputes before they escalate to formal legal proceedings.

In this case, the employee commenced employment with the not-for-profit organisation in July 2013 as a Bequest Officer. In September 2014, the employee’s manager (who rated the employee highly) resigned and the employee commenced reporting to the Major Gifts Manager. Previously the Major Gifts Manager had been the employee’s manager once removed. It is alleged that the applicant’s workload increased once this change occurred.

The Commissioner noted that the two colleagues “did not have a positive working relationship” – the employee claimed his manager treated him poorly, harassed him and was a micromanager. The Major Gifts Manager alleged the employee was argumentative. Both parties made a number of claims and counterclaims against each other.

In 2014, the employer issued the Bequest Officer a final written warning regarding his workplace conduct.

In 2015, the applicant made a number of allegations against his manager and concluded by alleging that she had engaged in harassing and bullying behaviours. No action was taken to investigate these allegations by the employer.

The Commissioner criticised the employer’s approach, noting that the General Manager took no action at the time to investigate the Bequest Officer’s bullying complaints and an independent investigator did not provide its report until five months later.

The Commissioner also had “serious doubts” that the final warning was a justified or a proportionate response, indicating that it had a “devastating impact” on the Bequest Officer, who was soon after declared unfit for work.

The employee was placed in temporary roles once a clinical psychologist recommended that he cease reporting to the Gift Manager and General Manager, the advice being that he was unable to perform the inherent requirements of his job.

The employer dismissed the employee in August 2015 with three weeks’ pay in lieu of notice. This was 11 days after a Fair Work Australia conciliation conference had occurred in an attempt to resolve the matter.

While sceptical of the employer’s HR practices, the Commissioner rejected the employee’s claim that the employer sacked him for a prohibited reason after he lodged bullying complaints.

While the employee’s bullying allegations were not upheld, legal proceedings such as this take up a considerable amount of employers’ time and money. This includes the employer seeking legal advice, preparing for the proceedings and the time spent at the tribunal.

The employer may have benefited from utilising the services of an experienced workplace mediator to resolve this matter informally at an early stage. This would have resulted in far less workplace disruption.

iHR believes that prevention is the best cure and workplace mediation is a more cost-effective and a less time-consuming process than formal proceedings and may resolve disputes before parties feel the need to consider litigation. As the process is confidential, this limits involvement and disruption to the wider workgroup. Contact iHR today to find out more about our workplace mediation services or enrol in our workplace mediation skills training program.