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Managing complaints

The basis of many complaints leading to formal applications for review is a lack of trust, miscommunication and the quality of relationships in the workplace including unresolved conflict.

Tensions and disagreement leading to conflict and disputes are an inevitable feature of the workplace. People bring to the workplace different experiences, capabilities, personalities and values that can come into conflict. Indeed conflict can be a positive thing, leading to fresh approaches to problems and innovative solutions.

However, too often conflict in the workplace is not responded to constructively – it may be ignored or avoided in the hope that it will resolve itself. It may escalate too quickly without an opportunity to explore alternative approaches. This can lead to a situation where the parties move to protect what they see are their rights. Where conflict is not addressed in a way that meets the needs and interests of the people concerned, relationships, trust and respect can deteriorate leading to lost productivity and inappropriate behaviour.

For this reason, some agencies in the Commonwealth and in other jurisdictions have invested in strategies to respond positively to conflict in their workplaces. For example, the Department of Defence Enterprise Collective Agreement 2009 has made responding constructively to conflict a corporate capability. As team members, Defence employees are required to demonstrate the following behaviours:

  • accepting differing points of view as a natural part of the work place that can lead to new ideas and improvements
  • identifying areas of possible conflict and working to reduce or eliminate the potential for problems
  • acting quickly to address issues, problems and conflict as they arise
  • considering alternative resolution methods as the first option
  • resolving conflict as close to the source as possible
  • actively participating in resolution.

[See: the Defence Enterprise agreement is on the Department of Defence website at www.defence.gov.au/dpe/pac/]

The State Services Authority of Victoria has published a guide for managers and teams on Developing Conflict Resilient Workplaces. The Guide proposes a conflict management model, incorporating both alternative dispute resolution and formal grievance resolution processes, and provides tools to assist agencies.

[See: Developing Conflict Resilient Workplaces: An Implementation Guide for Victorian Public Sector Managers and Teams, 2010 available on the State Services Authority website at the following address www.ssa.vic.gov.au]

Human resource practitioners can draw on the resources developed by other agencies to develop strategies, or to improve existing practices, in responding to employee complaints, workplace disputes and conflicts more effectively and strategically. In this context, conducting a formal inquiry becomes just one of a range of possible responses to a complaint or workplace dispute.

Factors to consider

Employee complaints can be managed in a number of ways. The approach that is taken will depend on the following:

  • the cause of the problem and
  • how serious the problem is, including its impact on individual employees, the workplace and productivity and in some cases even the reputation of the agency.

An appropriate starting point for resolving a complaint, conflict or dispute would be for human resource practitioners to consider the following questions when discussing approaches with managers:

  • What are the roles and responsibilities of the parties – the employees, managers and human resources?
  • Would the situation benefit from an informed diagnosis of the cause of the problem
  • What approach should be taken to resolve the problem?

An appropriate starting point would be for human resource practitioners to consider the following questions when discussing with managers the resolution of complaints, conflicts and disputes:

  • What are the roles and responsibilities of the parties – the employees, managers and human resources?
  • Would the situation benefit from an informed diagnosis of the cause of the problem
  • What resolution process best suits the nature of the problem?

Roles and responsibilities

Over the past decade and more, the respective role of the line manager and human resource practitioner has changed with the evolution of the APS from a centrally regulated, rules-focussed employment framework to an outcomes focussed framework. Line managers are expected to take ownership of people issues in their area of control as part of their business responsibilities.

Line managers need to take ownership and engage actively when conflict emerges in the workplace. However, many managers need support and advice in doing this and also need to develop their skills and capabilities in this area. One approach known as 'conflict coaching' uses a trained coach to support employees to understand and improve the way they manage conflicts or disputes. Conflict coaching can also be a useful preparation for managers who need to have difficult conversations with employees about behavioural and performance issues. 

The human resources function in agencies is increasingly taking a consultancy role, supporting the business managers to deliver outcomes. In this capacity, it can also play a useful role in the resolution of workplace conflict and disputes. This includes providing expert advice and facilitating manager's access to professional expertise, for example, access to organisational psychologists through the agency's Employee Assistance Program. With particularly difficult cases, including protracted performance and health issues or a significant breakdown in relationships in a team, the manager may need extensive support. This could include:

  • assistance from human resources in developing a strategy to manage the problem, which may need to be informed by a professional diagnosis of the cause of the problem
  • ongoing case management support and advice from human resources as the strategy is implemented
  • the engagement and support of more senior managers in the business line.

Understanding the cause of the problem

To resolve a workplace issue effectively, managers, and human resource practitioners supporting them, must have an informed understanding of the underlying causes of a conflict or dispute in order to make a decision about how best to respond.

There are a range of options for improving the diagnosis of the cause of a problem. In many cases, a manager talking to an individual or group of individuals to try to establish what is driving the complaint or dispute is an effective approach. How effective this is will in part depend on the capability of the individual manager and the level of trust in the workplace.

However, commonsense and good management skills can take the resolution of some issues only so far. When faced with an employee with a complex set of health, performance and behavioural issues, or a breakdown in relationships in a team in a way that is threatening productivity, professional advice can assist in identifying causes and inform the strategy for addressing and resolving the problem. This might include, for example, obtaining the services of a psychologist to talk to team members and observe the workplace with a view to identifying the issues and recommending remedies. In doing this it is important to be sensitive to the perceptions of team members about an intervention of this sort and peoples' concerns about being assessed, labelled or being subject to a punitive process as a result of such an intervention.

Professional assessment of the nature of a dispute and the motivation of the parties is part of mediation practice. Mediators engaged to assist in resolving a workplace dispute are likely to conduct an "intake assessment". This involves an assessment of the causes of the problem and the motivation and capacity of the parties to resolve the problem themselves with professional assistance.

Possible approaches

Discussion

In many cases, a manager having an informal discussion with the complainant, or a group of colleagues, will assist in resolving a complaint or dispute, particularly if the employee considers that their concerns have been listened to respectfully and if commitments given as a result of the discussion are followed through.

Alternative dispute resolution

Alternative dispute resolution is a more structured response in which the discussion between parties is assisted by an independent third party with professional expertise in dispute resolution.

See: [Alternative dispute resolution]

A formal review

A formal review of actions is an appropriate response, or part of a response to a complaint, in circumstances where the employee has specifically requested a review of actions. A review of actions is a statutory entitlement and if an employee seeks a review and is not interested in pursuing other options for resolving their concerns, the matter must be reviewed, providing the actions are reviewable under the Regulations.

For guidance on the procedures and process for handling reviews of actions see: [Review of actions procedures and processes]

A formal review can also assist in resolving a complaint where there is a dispute about factual issues that require someone to independently look at the evidence.

See: [Review decision making process].

Other Statutory processes

An employee's complaint may also invoke other statutory obligations. For example, an agency will be required to conduct a whistleblowing inquiry where an employee has made allegations of misconduct and invoked the whistleblowing provisions in section 16 of the Act. Advice about an agency's obligation when it receives a whistleblowing report is available on the Commission's website.

An agency may also consider that a complaint by an employee raises concerns about the behaviour of another employee that should be investigated under the agency's procedures for investigating suspected misconduct. The Commission publication Handling Misconduct provides guidance on the circumstances in which an agency may wish to investigate alleged behaviour as suspected misconduct.

What is the best response?

The best response to a complaint is one that balances the interests of the agency with the views and interests of the complainant or parties.

It is in the interests of both the agency and employees to resolve a complaint in way that addresses the underlying motivation and interests of the employee or the parties to the dispute. It is also in the interests of both the agency and the employee that the process for resolving the complaint is quick, fair and transparent.

In many cases this may require no more than a facilitated discussion that brings the parties together. If the parties need the assistance of a qualified third party to reach resolution, then alternative dispute resolution assisted by a professional practitioner may be the most effective strategy.

However, there will be circumstances in which a formal response, including an investigation, is required. This is the case where the employee invokes the whistleblowing provisions in the Act or where the agency has decided that it is necessary to conduct an investigation into suspected misconduct. The primary consideration in deciding to conduct an investigation into suspected misconduct is not the complainant's wishes or the desire of the parties to resolve the matter informally but the agency's need to uphold appropriate standards of behaviour.

In addition, a review of actions will be necessary if the employee makes an application and the action is reviewable under the Regulations. However, a review may also be the best way to resolve elements of particular complaints. For example, a dispute over whether an employee's performance is at a satisfactory standard is largely a factual issue and may be best resolved by a review of actions.

However, while an investigation under an agency's whistleblowing procedures, or procedures for investigating alleged misconduct, may deal with the immediate issue, it may be necessary for other interventions to operate in parallel to ensure a return to a productive workplace. For example, arrangements may need to be implemented to support both the complainant and the respondent, as part of managing the impact of the investigation. Other interventions may be necessary to keep the team settled while a member of the team is under investigation or to rebuild the team after the misconduct investigation has been completed.

Similarly, a review of actions may run alongside other interventions to improve the relationship and levels of trust between the manager and the employee.

Complainants may have a strong preference for pursuing a matter formally through statutory schemes and may refuse to participate in mediation or facilitated discussions designed to bring the parties together, even where this appears to be the most sensible response to the substance of the complaint – for example where it appears that the complaint is a result of inter-personal conflict or a misunderstanding between colleagues.

Human resource practitioners have a role in assisting the complainant to make an informed choice about the options available to them, the advantages and disadvantages of each approach and the likely outcomes. This requires a discussion with the complainant about what is motivating them and what they are seeking to achieve.

In having such a discussion it is useful to bear in mind that complainants:

  • have more opportunity to influence the outcome if they undertake informal resolution or alternative dispute resolution.
  • have ownership of the process and responsibility for managing their own issues rather than leaving it in the hands of a third party if they undertake informal resolution or alternative dispute resolution
  • complainants do not have a driving role when their complaint is investigated under agency procedures for investigating whistleblowing reports or suspected misconduct. Their status is as a witness and their view of the seriousness of what they are alleging will not necessarily influence the outcome.

The Australian Taxation Office has an internal complaints resolution service, ATOconcern, whose role, in part, is to assist complainants to make an informed choice about the nature of their complaint and the options for addressing it. ATOconcern is described as a workplace ombudsman – an independent office within an organisation whose role is to listen to employee concerns and provide a safe avenue to raise and address issues.

ATOconcern is a confidential and impartial complaint resolution service for ATO employees that is described by the ATO as an organisational ombudsman.

ATOconcern provides an independent, safe, confidential and impartial service for all staff who have concerns about issues in the workplace. ATOconcern not only provides advice to employees but can also intervene where appropriate, including arranging alternative dispute resolution. This arrangement is long standing having been in place since 1998. The independence and authority of the service is guaranteed by the Commissioner.

ATOconcern responded to 1,163 approaches in 2009-10.