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Companies in crisis - how to size up a personal grievance

We remain in uncertain times. The end of the wage subsidy is looming, and the ever-present concern of a Covid-19 flareup continues to hang over many employers’ heads.  

crisis covid 19 economy2In these circumstances we are likely to see another wave of redundancies and organisational change. Unavoidably, some workers will raise personal grievances.

So how can you respond to such personal grievances in a smart way, reduce the personal and time impact on the business and protect the bottom line? 

Understand the problem

Understanding what the problem is the first step towards understanding the solution.  Take a moment to understand what is actually being complained about. Is it the consultation process?  Are they opposed to the reason for the restructure or that they did not receive sufficient information? Perhaps the employee is unhappy with the absence of a contestable selection criteria. 

Once you have identified the claim itemise the issues raised, and identify what your position is on each issue.  You will need to consider whether there are weaknesses and how you might address those weaknesses.  Be aware of health and safety issues that need to be dealt with immediately.

This is also the best time to consider obtaining legal advice.

Understand the person

Always bear in mind there is a person behind the personal grievance. Consider why they are raising the personal grievance.  Do they want to keep their job or are they positioning themselves for an agreed exit?  Do they even have an objective beyond being unhappy with the situation?  Think about the perspective of the worker – could they be feeling like they are being singled out, or punished for unrelated issues that occurred during their employment?

Also consider the person’s personal situation – are they worried about financial commitments, or are they worried about finding another job?

Finally, look at the person raising the grievance from an objective perspective and think about how reasonable they are likely to be. Then consider the extent to which you will be able to engage with them to settle matters, or the extent to which they will be litigious.  

The answers to these questions will inform the best approach when communicating with the employee and how to achieve resolution.

Identify who will deal with it

Resolving grievances can be time consuming and stressful. It is important that the person (or persons) dealing with the grievance is equipped and experienced to handle the contentious work that comes with the territory.  That person should be supported and have delegated authority to make decisions.  You will need to consider to what extent that person is complained of by the employee.

The person leading this work should understand the situation.  Make sure they have access  to a timeline of events and all the available information. In many cases the person leading this work will be able to construct the timeline themselves.  This is an important exercise to ensure they understand the background and context of the grievance raised and to assess to what extent the employee’s grievance has substance.

Identify your options

Typically, there are three main approaches to responding to a grievance:

  • Stay the course – set out your position and let them decide their next step. Either it will go away, or they will litigate and you follow through and defend it.
  • Move towards settlement – set out your position but leave the door open to settlement either by suggesting mediation or communication with the employee or their representative. This can be effective where there are signals that the employee wants to leave.
  • Consider something out of the box – while there are procedural requirements in employment law, there is nothing stopping you from considering what the employee really wants, and this may be outside of a standard exit settlement. Consider whether there is a different area of work that the employee expressed interest in that they could be redeployed to. You may be able to source employment with another employer. Or perhaps there is a potential for contract work or a change to part time work which is exactly what the employee is looking for. 

Resolving a grievance does not have to be a positional battle – consider your interests and the interests of the employee and see if there is a solution that suits both.   No matter which approach you take, there are always opportunities to discuss a resolution or settlement.

Get advice when you need it

Once you choose your pathway you can consider what strategies to adopt in moving towards your preferred solution. 

If you are unsure about an approach, it is often more cost effective to get advice about the approach before you take it, rather than having to get legal assistance after the fact when things go wrong.

Remember your other obligations

When dealing with a grievance it’s important not to lose sight of your other general obligations.

You have privacy obligations to an employee, even when they raise a grievance. Be careful what you tell others about the situation.  This includes being careful about what you say in emails and notes about the employee, as these may fall within the scope of a privacy request.

You also have a duty to ensure the health and safety of an employee so far as is reasonably practicable. Ensure you offer support to the employee, such as EAP. Further, if the grievance raises health and safety issues, make sure you take that seriously and follow any health and safety policies you may have in place.