Organisations sometimes find themselves criticised by courts and tribunals for the mishandling of a workplace EEO, harassment or bullying complaint. Often it is because the initial response to a complaint by a line manager is not well executed. For example the under-reaction; a manager might say to a staff member who is complaining about a colleague’s pattern of sarcastic comments ‘Well that’s just the way Dave acts. He doesn’t mean any harm so just don’t take it too seriously.’ Of just as much concern is the over-reaction where the manager says to the alleged bully. ‘I have heard some worrying things about you Mark. If you don’t start behaving like a decent person you will have to find somewhere else to work.’
Our view is that, in general it is not a case of managers trying to protect bullies or discriminators. In fact most want to act in good faith. However, managers are often not trained to deal adequately with such complaints. It is interesting when one considers that, although in some industries as many as 40% of workers allege they have witnessed bullying in their workplace in the last 12 months, only a very small percentage of those have ever reported it. Unfortunately, some employees across Australia do not always seem to have confidence in their management’s ability to effectively deal with their workplace issue or simply can’t be bothered reporting matters. That means dealing with an EEO, harassment, bullying complaint is not a common occurrence for most managers. However, it is essential that all know how to effectively manage a complaint in accordance with the organisational policy and processes.
Most workplace EEO, harassment, bullying policies provide employees with three internal options by which a complaint can be effectively dealt with. Two of these are informal.
- First they, may go directly to the individual they perceive is treating them unsatisfactorily and attempt to resolve the matter one on one.
- Second, they may go directly to their immediate manager, one up manager, a senior manager they trust or a representative from HR or a designated EEO or OHS manager and have the matter dealt with informally. Perhaps an informal chat between the manager and those involved or an informal team-based intervention. If involved in an informal intervention, a manager should make a note of their action, but not place it in the file of those involved because it remains unsubstantiated by an investigation.
- Third, for serious allegations a formal process that allows for ‘natural justice’ is essential. That means the appointment of an investigator who is truly unbiased and gives all parties the chance to have their say, then reaches an independent finding. This is usually known as a Formal Complaints Handling Process. When determining whether to appoint an independent investigator, organisations need to consider if they have the skill, time and ability to be perceived as unbiased if the investigation is conducted by someone from within the organisation. A line manager should not run a formal complaints process when it is a matter related to a reporting team member because he or she is likely to be a witness in the investigation-whether or not they have any prior knowledge of the matter. Investigators should be trained.
Employees also have the right to discuss their complaint with external organisations such as Workcover or the Australian Human Rights Commission.
The Managers role when handling EEO, harassment, bullying complaints
The role of managers in complaints handling includes:
- Listening to complaints and directing employees to the organisation’s policy and complaints handling procedure;
- Exploring possible options;
- Responding to minor complaints informally and in a timely manner;
- When necessary, seeking advice form an HR advisor or the individual responsible for managing such complaints;
- Guiding individuals with serious allegations into the formal complaints handling process. (Usually run by Human Resources or a nominated manager or external party); and
- Ensuring policy guidelines and instructions from HR and investigating parties are followed throughout an investigation.
- Following up on any recommended resolution activities
A manager should never trivialise a complaint or attempt to run their own investigation unless they have been trained and designated with the responsibility to handle the particular matter. No decision on the employment status (e.g. termination, suspension with pay) of an individual throughout a formal investigation should be made by a manager without consultation with the HR department or a senior manager responsible for this area.
Managers should also remember that if they believe an investigation is necessary, due to a serious OHS or policy breech for example, even if the employee making the complaint does not want any action taken, they should contact HR or a senior manager responsible for the area and report the matter.
Most of all, managers must remember that they have an everyday role of ‘remaining approachable’ to all team members. It is the greatest factor in mitigating risk in this area. That team members see their managers as fair, impartial and responsive (not reactive) on matters of behaviour in the workplace means when ‘things go wrong’ people will seek their manager’s assistance.
Organisations should remember that ultimately it comes back to a combination of a positive workplace culture, proactive monitoring of risks, excellent process, and well informed managers and staff to make effective complaints handling a reality.