Responding in a timely way can help mitigate risks of claims, says employment lawyer speaking at upcoming Masterclass
An upward trend in compensatory awards involving cases of personal grievance is one of the items lawyer Rebecca Rendle will be discussing at the upcoming HRD Employment Law Masterclass.
A number of successful constructive dismissal claims recently have resulted in high remedies, one totalling nearly $90,000, she says.
To avoid costly cases of this nature, there are some key steps to follow if an employee raises concerns, says Rendle, partner at Simpson Grierson.
“Responding in a timely way and effectively addressing issues that are raised during an employment relationship is one way that employers can mitigate the risks of a claim.”
The first thing to do if a claim is raised – which would usually be in writing – should be to check it has been raised in time, she says.
“If it's outside of the 90 days for a personal grievance or the 12 months for a sexual harassment personal grievance, then the employer needs to be careful about how they engage about that.
“It might mean that they still do want to engage in it to understand, but they need to make an informed decision about whether they're going to respond, or attend mediation, because that could impliedly consent to a grievance being raised out of time.”
As well as checking the timeframes, it’s important to make sure there are sufficient details to understand what it is the employee is looking to be addressed, she says, “particularly for ongoing employment relationships, that's going to be important.”
In practice, employers should be looking to put policies in place and create a workplace culture in which people feel comfortable speaking up, says Rendle, who will talk about this in her presentation at the masterclass. That way, if something happens, it can be addressed in a timely way.
To nurture a culture in which matters of this nature don’t arise, or where staff with concerns feel comfortable coming forward, it’s important to have a clear policy in place that’s worded in plain language, she says.
Rendle stresses this should be a living document that's reinforced and that people should be encouraged to voice concerns about not just what they experience but also if they witness behaviour that isn’t acceptable.
“There need to be conversations and training that aligns with that policy document,” she says.
As well as a strong workplace culture it’s important to deal with situations in a timely way.
“If things continue to build over time, and are unaddressed, it can make any employment situation trickier to deal with. Having early conversations can avoid things escalating to the point where an employee raises a personal grievance,” says Rendle.
Training is something that should definitely be on the agenda, says Rendle.
“This should cover what sexual harassment is, because although for many of us it's pretty obvious what's acceptable and what's not, we can't make the assumption. This is particularly the case when it comes to people who might not understand that certain jokes are inappropriate, or comments they think are potentially complimentary but are not acceptable.”
The organisation’s training should also cover what people should do if they have concerns.
“You don't want a situation where people don't report because they have no confidence it will be taken seriously or doubt anything will be done to fix it,” she says.
“What I've seen work quite well is having ‘contact people’ at different levels of seniority and in different roles across an organization who someone can have a chat to about their situation and what they should do. There’s some really good training those contact people can have about how they can talk to someone who's experiencing that situation, offering support, and talking them through options for managing it.”
Two cases Rendle will talk about at the upcoming masterclass demonstrate how an inadequate response to, and investigation of, sexual harassment concerns led to significant remedies awarded in an employee's favour.
She will also cover a trend in the rise of constructive dismissal claims and cases involving employer obligations through a te ao Māori lens (a Māori world view) regarding tikanga Māori (protocols and customs) and employment relationships.
“There are so many advantages to an employer making sure correct and fair processes have been followed in terms of personal grievances - obviously financial advantages are included in this but so too is employer brand and reputation, impact on recruitment and retention, and the stress on those involved in proceedings,” says Rendle.
“Ensuring that fair processes are followed and doing what you can to mitigate personal grievances will be in the best interest of an organization.”
