Workplace Disputes

You should deal with a workplace dispute swiftly and appropriately and in accordance with all relevant workplace policies. This will usually require an investigation into the alleged conduct, so that you can properly substantiate the alleged behaviour before taking any adverse action.

The investigation should be undertaken by a person who is as independent as possible, so that the process is not impacted by any perceived or actual bias. Sometimes this will require the employer to engage an external investigator. Prior to commencing the investigation, the investigator should check the employment contract of the complainant and the person complained about, as well as any applicable award or enterprise agreement or relevant policy, and ensure that the investigation is conducted strictly in accordance with those documents. The investigation must also be conducted appropriately, ensuring procedural fairness for the person alleged to have acted inappropriately. Before the employer takes any adverse action, the investigation must establish that it is more likely than not that the behaviour complained of took place and any response taken to manage the behaviour must be proportionate to the behaviour, while ensuring a safe workplace. If the employer wishes to keep the investigation report confidential, they should engage a lawyer prior to engaging the investigator, as any investigation report requested by the lawyer (rather than directly from the employer) is likely to be covered by legal professional privilege.

You should deal with employee grievances swiftly and appropriately and in accordance with the employee’s contract of employment and all relevant workplace policies. This will usually require an investigation into the alleged conduct, so that you can properly substantiate the alleged behaviour before taking any adverse action.

Procedural fairness is the process of treating someone fairly and reasonably when making decisions that could adversely affect them. In an employment sense, this usually means giving the person a reasonable opportunity to be heard in relation to any allegations put to them, in an environment where they are supported to the greatest extent possible.

In most cases, no. In many Australian states and territories recording conversations without the knowledge or consent of the participants may be unlawful, and at the very least, it renders the recordings inadmissible in court. Only in very limited circumstances is secret recording permitted.

This depends on the circumstances. In most cases, an employee who raises a complaint at work cannot be fired because they made the complaint. However if there is a legitimate reason for terminating the person’s employment which does not include the making of the complaint, it may be lawful to fire the employee even if the complaint has not been resolved.

If one of your employees commences proceedings against you in relation to a workplace dispute in a court of tribunal, mediation is likely to be the first step in the process. The mediation process differs depending on the forum, ranging from a one-hour telephone call conducted by the Fair Work Commission to an all-day mediation in the Federal Court. Each party is given the opportunity to state their case at the outset, and there is often one or more opportunities for each party to have time alone with the mediator, who tries to assist the parties to come to a settled agreement. Everything that is said in the mediation is confidential and cannot be used against the parties in subsequent court proceedings, which encourages the parties to be as open as possible during the mediation in order to reach a settlement.

Courts and tribunals will always encourage parties to attend mediation, but in some cases mediation may not be appropriate or worthwhile, particularly if one party does not wish to attend. If mediation is not available in a matter, the matter will proceed directly to hearing. The exception to this is where there is a clause in an agreement between the parties that requires mediation. If one of the parties refuses to attend, there may be consequences for doing so, which may be outlined in the agreement itself.

Employer obligations are the rules that govern the employer’s conduct in the workplace with respect to its employees, including laws about workplace safety and terms and conditions of employment.