Strategically managing complaints and disputes

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Information on how to strategically manage complaints and disputes

What are the different roles in managing complaints and disputes?

The roles of line managers and HR practitioners have blurred over time. There are greater expectations that line managers own their agency's people management.

HR practitioners are increasingly becoming internal consultants. HR practitioners can:

  • develop strategies to manage problems
  • identify and discuss options and paths
  • facilitate access to professional expertise
  • engage with, and support, senior business line managers.

It is important, regardless of role, to identify and address the real issue, rather than react to behavioural symptoms.

How can I make informed assessments of issues?

Listening is usually a good start!

Keeping an open mind on different perspectives and not jumping too quickly to conclusions helps individuals and teams.

Dealing with an employee with a complex set of health, performance and behavioural issues, or a breakdown in team relationships can seem daunting, but it doesn't have to be.

Don't be afraid to ask for professional assistance to identify causes and inform strategies for resolving problems. Professionals help break issues into manageable pieces of work to systematically address.

Options in identifying issues include:

  • psychologists talking with team members and observing the workplace to identify issues and make recommendations
  • mediators assessing causes of disputes, the motivation and capacity of parties to resolve the problems themselves or with professional assistance.

The option chosen depends on the:

  • complexity of the matter
  • capability of individual managers
  • level of employees' trust.

What are the main options to resolve issues?

Options to resolve issues vary.

If employees have invoked statutory processes such as a review of actions or made a public interest disclosure, options are reduced.

In general, try resolving the issue as early and as informally as possible.

Options include:

Case study 1: respectful informal discussions

Respectful informal discussions

Case Study 1

A group of women complain they are uncomfortable working with a male colleague whose behaviour is a little unnerving. In their view he doesn't make eye contact and appears to leer at them.

The manager has an informal discussion with the employee about his colleagues' concerns. After the meeting, the employee's support person reveals the employee has a condition that means that he is unaware of the impact of his mannerisms on his colleagues.

The manager encourages the employee to be more open with colleagues and to share information about his condition.

Case study 2: alternative dispute resolution (ADR)

Alternative dispute resolution (ADR)

Case Study 2

A team is fracturing and not meeting its outputs.
There are inter-personal conflicts among team members including complaints of harassment and discourteous behaviour.
The team leader has attendance problems and is not respected by the team.
She has not advised her agency of any ongoing health issues or other circumstances impacting on her attendance.

Things to consider:

  • engaging an organisational psychologist to diagnose problems and recommend approaches
  • discussing with the team leader any health or other issues impacting on her work
  • identifying behavioural conflicts among team members.

ADR helps address individual health, performance and behavioural issues.

This can be through team conferencing with facilitators to discuss what has happened, the effects on people and the best way to resolve team issues.

Case study 3: formal review as a statutory requirement

A formal review as a statutory requirement

An employee specifically requests review under section 33 of the Public Service Act. If the action is reviewable and they are not interested in pursuing other options for resolving their concerns, the matter must be formally reviewed.

A formal review helps where there are disputes over factual issues that require someone independent to look at the evidence.

Examples include: pay or leave disputes; and performance assessments.

An employee complaint may also invoke other statutory requirements such as a public interest disclosure or a privacy or discrimination issue.

Sometimes a complaint about another employee may require investigation as a possible breach of the APS Code of Conduct.

Case Study 3

A woman complains to human resources about sexual harassment by a male colleague (the respondent). This includes unwelcome physical contact and inappropriate social and sexual invitations. She feels afraid of reporting the behaviour as the male colleague is very friendly with the manager of the area.

Her complaints are corroborated by another female colleague who has witnessed the original complainant's distress and also experienced low level harassment from the same person.

The original complainant advises that she is so uncomfortable and distressed that she is seeing a doctor and is applying for jobs elsewhere.

This is not a scenario in which alternative dispute resolution or informal resolution would be the appropriate response.

It involves serious allegations of misconduct and is more properly dealt with using agency procedures for investigating suspected misconduct.

However the response to this issue may also involve other management interventions. These may include:

  • referring the complainants to support services
  • formally directing the respondent about contact with the complainants and
  • temporary changing supervisor and reporting arrangements to deal with the complainant's lack of confidence in the independence of their manager.

What is the role of HR practitioners in helping complainants make informed choices?

HR practitioners have a role in assisting the complainant to make an informed choice about the options available to them; including discussing the advantages and disadvantages of each approach and the likely outcomes.

This requires discussing with the complainant their motivation and what they are seeking to achieve.

HR practitioners can help complainants understand that they:

  • have more opportunity to influence the outcome if they resolve issues informally or by alternative dispute resolution processes
  • have more ownership of the process and responsibility for managing their own issues if they do not hand that responsibility to third parties - for example, an investigator or a delegate
  • will not have a driving role when their complaint is investigated under agency procedures for investigating suspected misconduct.

Their status is as a witness or informant and their view of the seriousness of their allegations will not necessarily influence the outcome.

What is alternative dispute resolution?

Alternative dispute resolution (ADR) is an umbrella term for processes where an impartial person assists those in dispute to resolve the issues between them.

Depending on the nature of the dispute, they may be:

  • facilitative,
  • advisory or
  • determinative.

The Attorney-General's Department provides advice on ADR issues and policy to Australian Government agencies.

What is mediation?

Mediation is a voluntary process. It is usually conducted in private and the outcomes are confidential to the parties.

Mediation brings together parties to disputes, with assistance from a neutral third party (the mediator).

Through discussion, the parties:

  • identify issues
  • consider alternatives
  • develop options and
  • endeavour to reach agreement.

The mediator has no advisory or determinative role on the content or outcome of the dispute.

A mediator may advise on processes for resolving disputes.

What is workplace conferencing?

Workplace conferencing brings a group of colleagues together with a neutral and qualified facilitator.

 It is usually used when:

  • there is a current conflict or
  • past disputes have not been adequately resolved.

The conference allows everyone affected by the dispute to consider what happened, the effects on people and the best way forward to resolve the issue.

What is conciliation and arbitration?

Conciliation is where parties, with assistance from a dispute resolution practitioner (the conciliator) discuss issues to reach an agreement. The conciliator is responsible for managing the conciliation process.

The process is similar to mediation. However, a conciliator will provide advice on matters in dispute and options for resolution, but does not make determinations.

Arbitration is where the parties to a dispute present arguments and evidence to a dispute resolution practitioner (the arbitrator).  The arbitrator makes binding decisions.

When and when not to use ADR?

The principles underpinning ADR interventions are not appropriate for all disputes. When considering these type of interventions, note that:

  • participation in mediation has to be voluntary
  • some disputes are suited to mediation and some are not
  • the neutrality and independence of the mediator are important for the credibility and success of the process.

Mediation is not suitable for all forms of disputes.

For example: It is not appropriate to use mediation to deal with disputes raising behavioural issues serious enough to be considered under agency procedures for investigating suspected misconduct.

In these circumstances agencies must, and must be seen, to publicly reinforce appropriate standards of behaviour. The private agreements reached through mediation do not allow for this.

The success of mediation is enhanced when the:

  • parties feel the processes are safe and their concerns are aired and listened to respectfully.
    Skilled mediators conduct pre-mediation screening (intake assessments) to assess the likely success of mediation given the values, interests and behaviours of the parties
  • mediator is seen to be neutral and independent.
    Not all agencies are large enough to provide services that are independent of consultancy and management advisory functions of HR areas.

So what is the best response?

The best response and intervention depends on the particular circumstances.

The best approach supports sustainable outcomes for all parties.

The best response:

  • balances the interests of the parties
  • addresses the underlying motivation and issues
  • is quick, fair and transparent.

The best response may require indirect interventions to:

  • support the parties
  • rebuild performance in a team
  • re-establish trust in relationships.