Do you feel that you haven’t had a fair performance appraisal? Have you been the subject of bullying behaviour in the workplace? Do you want to make a complaint but you’re not sure where to start? Have you expressed your concerns verbally to your employer but haven’t put anything in writing? Do you feel your employer is just sweeping your concerns under the carpet?
This factsheet outlines the general process for making a complaint, both in the workplace and to external bodies.
B. Starting Point
The starting point is that you should not think that, just because you express some concerns verbally to your supervisor or someone else in the workplace, that anything is going to happen. The natural human reaction is to ignore problems in the hope they will go away. If you don’t push your particular complaint, it is more than likely that nothing of substance will occur.
Of course, this depends on the nature of the issue. Minor matters may be able to be resolved by approaching your workmate or supervisor in an informal way. However, if that doesn’t address the issue, you will need to consider a more formal and structured approach.
Generally speaking, complaints should be made about matters that have happened recently. It is often difficult to obtain practical outcomes by making complaint about matters that happened some time ago. The starting point is to see whether there is a formal complaints process with a legal basis which may help you. Whilst a formal complaint can still be made without this legal basis, your complaint is more likely to be treated seriously if there is a formal process and it is followed.
A good starting point is to see whether your contract of employment has any provisions about how to resolve workplace disputes. Sometimes this will allow a dispute to be taken to the Fair Work Commission if the issue is not resolved internally.
Next, you should look at any policies the employer has on making complaints or grievance resolution or addressing harassment/bullying in the workplace. If you are unhappy with a performance management process being undertaken, then you should look to see if the employer has a policy about performance management or disciplinary action which sets out the process they will adopt.
- Enterprise agreement
If your employment is subject to an enterprise agreement, it will have a dispute resolution clause setting out the matters about which disputes can be raised and the process for resolving disputes. Some enterprise agreements allow a dispute to be raised about any matter arising out of the workplace relationship. Increasingly however, these provisions are limited to disputes arising out of matters contained in the enterprise agreement itself.
- Industrial Award
Disputes can be raised with your employer about any matter arising out of the applicable industrial award (assuming there is no enterprise agreement in place). For example, a dispute could be raised about changes to your hours of work.
C. What to put in your complaint
When writing your complaint, you should:
- state that you are making a complaint;
- state if you are making the complaint under a particular policy, your contract or enterprise agreement or award provisions;
- summarise the nature of your complaint, e.g. a complaint about changes to your hours of work or workplace bullying by particular people;
- set out a chronological history of the facts comprising your complaint in a detailed way;
- if there is more than one complaint, make sure you put the one of most concern first;
- make sure you separate what is just background from what are the facts of the complaints;
- put the incidents which have the strongest facts first so that they come to the reader’s attention first;
- set out the outcome you would like to see from your complaint;
- make sure your complaint is easy to read with headings, sub headings, paragraphing, page numbering and, where relevant, summaries;
- ensure that all relevant evidence you have is contained in the complaint so it cannot be swept under the carpet; and
- set out a definite time (say 7 or 14 days) for a response to your complaint/grievance.
Here is a simple example.
RE: COMPLAINT UNDER GRIEVANCE/BULLYING POLICY
1. I wish to make a formal complaint against X under the …. Policy. My complaint is that X has engaged in conduct on/between (name dates) in breach of the ….. Policy.
2. I provide the following facts to substantiate my complaint.
Incident on (name date)
3. On (date) at about (time), I was at my desk undertaking my work duties when X came up to me and said “…..”. I responded by saying “…” (or “words to the effect of” and then paraphrase what was said).
4. On (date), X sent an email to me stating that ….. A copy of this email is attached and marked A. I was very distressed by this email.
6. I understand that my complaint will be dealt with in accordance with the …. Policy. I would be grateful if you would acknowledge my complaint and let me know the steps that will be taken to address the matter. I look forward to hearing from you within the next 7 days.”
A complaint should be made in writing and either delivered personally to the employer or emailed or express posted to the company.
It is important to keep a paper trail for your complaint in chronological order. So, make sure you keep a copy of an acknowledgement of your written complaint and any documents received in the course of the complaint.
You should provide as much detail as possible in your complaint document but it is important that it is set out as simply and concisely as possible. You should try and make it as simple as possible for the person reading the grievance/complaint to understand the nature and basic facts as quickly as possible. You should use paragraph numbering and sub headings as necessary (for instance, if there are several different factual incidents).
Here is an example of a detailed statement of facts contained in a complaint:
5. On an occasion in the first few days after my return, I asked Nicole that if she was leaving the office could she please tell me where she was going and when she was likely to be back. I asked this by way of courtesy so that I was aware of who was in the office at what time. This was a practice that had been entrenched in the office prior to my departure on maternity leave. Within about thirty minutes of this conversation Paul came out and literally threw a memo on top of my hands whilst I was on the telephone, and using my laptop computer. The memo contained words to the effect that I had returned from maternity leave and Nicole had taken up a new position in the company mainly working in the operations side and not administration and the new position reported only to Paul. This incident occurred in front of another employee, Gary Sigel, who was sitting in front of my desk at the time, waiting to ask me something. As Paul walked past, he gave Gary a copy of the memo and said “here’s one for you too”. I understand that all senior staff members were subsequently provided with a copy of the memo, and it was also posted in the lunch room.
6. I noticed on following days that Paul made a point of telling Jaymee when he and Nicole went out for lunch, even when I was in the office.
7. I recall another occasion just after my return to work when Paul arrived at work after I had started. I noticed that he said “good morning” to Jaymee and had a conversation with her. When he had finished, I said “good morning” to Paul and he just stared at me and said nothing.
8. I also recall that when Paul and Nicole went to lunch each day, they would ask the other office staff, David and Jaymee, whether they needed anything but would not ask me. This also occurred when Nicole was making tea for Paul and herself. I noticed that she asked David and Jaymee whether they wanted a cup but would not ask me.
9. On about my second or third day back at work, I asked Nicole to assist with taking phone calls and at the front reception desk when both Jaymee and I were already tied up and particularly in the afternoons after Jaymee had finished for the day. Nicole told me that she would help with these things. However, I subsequently observed that after Jaymee had left for the day, Nicole would go to my father’s office which was being used by Paul and stay there until it was time to go home. During the second week of my return to work, when my father had returned and needed to use his office, I noticed that Nicole made no attempt to assist Jaymee and myself. This conduct occurred consistently and made me feel isolated and unwelcome.”
You should follow the grievance or complaint escalation process contained in the relevant policy. For most grievances, this might involve a 2 stage internal process of making a complaint to a supervisor and if this doesn’t achieve success, then making a complaint to a higher level manager. If you are making a complaint of workplace bullying or harassment, then a more direct process will usually be involved of making a complaint to the Human Resources Director. You may find that your supervisor or a Human Resources officer may wish to meet with you to obtain more detail of your complaint or interview you about the facts. Remember that you can have a support person present at these meetings if you wish. You should co-operate with any investigation the employer undertakes.
In more serious cases of workplace bullying or sexual harassment, the employer may engage an external investigator to conduct an investigation into the matters in your complaint. You should ask for a transcript of any interview with an investigator. Alternatively, you could ask the investigator for permission to record the meeting and if this is not agreed to, then your support person should make notes of the content of the conversation.
The employer should tell you what it intends to do about your complaint and whether it considers it to be substantiated or not. You will not always be told whether disciplinary action is being taken against another employee.
You can ask other employees to provide statements about the facts of the matter but you should not pressure them if they are reluctant to do so or you may face an allegation of harassment. Most co workers will have good intentions but will not wish to place their own employment in peril by getting involved in your complaint.
Sometimes, the employer may ask if you are prepared to enter into mediation with the respondent to your complaint. Mediation is a voluntary process and you should not fee obligated to agree to a mediation, particularly if you are feeling harassed or bullied by the person in question. Mediation can work as a way of resolving many practical workplace disputes but will rarely be suitable for claims of bullying or harassment.
E. External Complaint Processes
If your complaint/dispute is not addressed to your satisfaction through these internal processes, you may wish to consider escalating the complaint to an external body. Your ability to do so will depend on the existence of a legal basis for doing so.
- Dispute notification to Fair Work Commission
Your employment contract or an employer policy may provide that a dispute/complaint can be escalated to the Fair Work Commission if it is unable to be resolved internally. Otherwise, an applicable enterprise agreement or industrial award may provide a basis.If you are a state public sector or local government employee, then you will usually be able to raise a dispute in your state industrial commission about any work related matter (there will also be formal internal processes you can use). However, for private sector employees the ability to raise a dispute or complaint in the Fair Work Commission is more limited.Once your dispute is notified to the Fair Work Commission, a conference of the parties will usually be convened, either by phone or in person. This conference will usually be conducted by an Industrial Commissioner or Conciliator from the Fair Work Commission who will explore whether a mediated outcome is possible with the Commission’s assistance. It is advisable to have a support person or union representation or legal representation at this conference if practical.Any agreement will be put into writing. The Commission may also express a view about the dispute which, whilst not binding, carries some authority. If agreement is not reached, you may be able to ask the Commission to arbitrate the dispute but this will only be possible if it is specifically allowed for in the applicable contract/policy/enterprise agreement or agreed between the parties.
- Other options
Apart from raising a dispute in the Fair Work Commission, you may be able to, depending on the facts of your matter:
- Make an application to the Fair Work Commission for stop workplace bullying orders;
- Lodge a complaint of unlawful discrimination or sexual harassment with the state or federal anti discrimination commissions;
- Lodge an application with the Fair Work Commission for a breach of general protections remedy;
- Make a complaint to the Fair Work Ombudsman; or
- Make a complaint to the relevant workplace health and safety authority.
This is not an exhaustive list of options but covers the main legal options for pursuing a dispute/grievance. Further details of these options can be obtained by referring to other factsheets on this website.