A recent article [A Gender Pay Gap and a Missed Opportunity] discussed a recent case where a large employer was found to have directly discriminated against a female manager by depriving her of an opportunity to negotiate and receive a higher salary, while allowing her male colleagues to do so.
As well as reminding employers of the risks of unlawful direct discrimination in pay arrangements, the case was instructive to employers about the importance of dealing with complaints effectively and early. Clearly employers must take effective steps to manage concerns raised with them about pay discrimination in their workplace.
We are also sometimes asked about how employers should deal with a complaint that, after a proper investigation, they consider does not have a reasonable basis.
How does an employer establish and implement an effective process for managing complaints? How should an employer deal with a complaint where it has genuine and proper grounds to consider that the complaint does not have a reasonable basis?
To start, employers must establish an effective process to resolve complaints.
Some reasons given by the Australian Human Rights Commission for establishing an effective complaints process, are that:
- A process can improve staff satisfaction and help avoid complaints to external agencies or other legal action.
- Under federal anti-discrimination laws, if an organisation argues that the organisation should not be held liable for any discrimination or harassment by one of its employees, the organisation will need to demonstrate that it had taken all reasonable steps to prevent or avoid the discrimination or harassment.
- An important factor in deciding whether the organisation had done enough to prevent discrimination is whether there was an effective complaint handling procedure in place.
What Should a Policy Address?
According to the Commission, a good complaint process will be fair, confidential, transparent, accessible and efficient. Link to good practice guideline
It is good practice to offer both informal and formal complaint handling procedures.
- Example of an informal procedure: An employee believes they have been sexually harassed by a colleague. The employee asks their supervisor to speak to the alleged harasser on their behalf. The supervisor privately conveys the individual’s concerns and reiterates the organisation’s sexual harassment policy to the alleged harasser without assessing the merits of the case.
- Example of a formal procedure: An employee believes they have been sexually harassed. The employee makes a formal complaint to the supervisor. The supervisor then investigates the claims to determine whether they occurred. Management undertakes a process to determine the most appropriate outcome.
How Should a Policy be Implemented?
When implementing a policy, the Commission recommends employers to:
- Make sure staff are aware of your policies and processes.
- Provide training for staff on their rights and responsibilities under the policy, and if there are insufficient resources to train all staff, focus on those in management and human resources roles.
- Make sure managers model behaviour consistent with the policies, for example by including relevant indicators in performance agreements.
- Have contact point/s for employees to discuss any issues, for example, by establishing Workplace Contact Officers.
- Consider how potential problem areas may be identified, for example by conducting staff surveys, or exit interviews with departing employees, or by reviewing work units with high rates of absenteeism or staff turnover.
Our experience is that employers that promptly address complaints by an effective process will significantly improve their prospects of managing the risks of potential claims.
What if a complaint has no reasonable basis?
Employers may also receive complaints that, after genuine consideration by a proper process, do not have a reasonable basis. What should the employer do in those situations?
A Right to Complain
The starting point is to respect an employee’s right to complain. In many situations an employee has a workplace right to complain, and case law has established that a complaint need not be factually correct, substantiated, proved, or ultimately established.
Employers must be careful to not discourage employees from making complaints in the first place!
The Employee’s Responsibility
Employees are also responsible to respect their employer’s complaints process.
Case law has also established that a complaint must be:
- genuinely held or considered valid by the complainant;
- made in good faith; and
- made for a proper purpose, for example to notify the grievance so that it may be received and, where appropriate, investigated or redressed.
For example, a complaint may not always meet those criteria, if it:
- is worded to destroy any possibility of a viable working relationship with senior management; or
- discloses a fundamental problem of the employee not being willing and able to function effectively as a member of the team.
Managing complaints is a critically important opportunity for employers to improve their workplaces and to manage risk.
- have a process to effectively manage concerns raised with them about pay discrimination in their workplace;
- ensure that all employees are aware of the policy;
- ensure that at least their contact persons, human resources personnel, and key managers are trained in their rights and responsibilities under the policy;
- respect the rights of employees to make a complaint; and
- be careful to not discourage employees from making complaints in the first place.
Employees also have rights and responsibilities, and should:
- understand their right to make a complaint about pay discrimination;
- follow the process set out in the employer’s complaints policy;
- make complaints in good faith and for a proper purpose; and
- consider how their complaint is worded (though they should not be expected to be perfect).