Workplace disputes that escalate and become costly and time consuming legal disputes can sometimes be avoided by employers’ early intervention using the option of mediation.

A recent case before the Federal Court highlights the importance of employers being proactive and utilising dispute resolution techniques as soon as a workplace complaint is made.

 

A casual administration assistant who was employed by the subsidiary of large construction company commenced employment in September 2012.

An incident occurred in September 2013, when the employee’s supervisor asked about the health of the casual employee’s father. The employee advised that his father had six weeks to live. The proceeding notes that the supervisor responded “That is no good mate” and left the office. The employee alleged that the supervisor made these comments in a sarcastic tone and with a smirk on his face.

A formal complaint was made by the employee and a workplace investigation undertaken. The Senior HR Adviser responsible for the investigation advised that he had interviewed others who had been present in the office when the exchange occurred and was satisfied that the supervisor made a genuine and compassionate inquiry about the employee’s father.

The casual administration assistant was unhappy with the outcome of the investigation and continued to raise concerns regarding the supervisor’s comments about his father’s health. The employee alleges that the HR Adviser responsible for the investigation responded to his concerns by threatening to mount a “counter-claim” against him if he persisted in pushing the employer to accept his version of the events that led to the complaint.

The employee also claimed that after his complaint about the supervisor’s comments, the mining and construction company withdrew an offer to shift him to a full-time quality control coordinator role. The employee claimed that he had already been performing this role on a casual basis for six months.

The employee’s brother also worked at the mining and construction company as a welding superintendent. The employee’s brother was the person who called management on the evening the inappropriate remark was made to advise management that he wanted to make a complaint about the exchange between the supervisor and his brother. The brother described his own relationship with the supervisor as “not amicable” with “ongoing friction” characterising him as a “f–king backstabbing, conniving, vindictive c-nt”.

The case was dismissed by the Federal Court. Specifically, the Federal Court accepted the HR Advisor’s denial that he had made the threat.

The judge also rejected allegations that the employer had falsely promised the role of quality control coordinator in contravention of sections 18 and 31 of the Competition and Consumer Act, because the employer had not undertaken the approvals process to create the role.

While the employer was found not to be at fault in this dispute, the proceedings would have been disruptive for the employer. One option in such cases is for employers to undertake mediation with all parties when workplace tension arises and complaints are made. Workplace mediation may have been appropriate in this instance as workplace mediation can be used to assist parties to achieve an ongoing working relationship. In this instance the working relationship had broken down.

Having an impartial third party facilitator to structure discussion between the parties may have helped both parties understand each other’s perspectives and find common ground.

 

iHR believes that prevention is the best cure. All iHR’s mediators are highly experienced and can assist parties to move forward in a safe environment and help re-establish a working relationship. Mediation can be provided onsite or at a neutral location. Generally, mediation is more cost effective and less time consuming than formal proceedings. Contact iHR today to find out more about principles of conducting an effective workplace mediation, focusing on best practice process and the skills required of an effective mediator.

 

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