As an employer it is important to respond appropriately to complaints and disclosures by employees. It is just as important to respond appropriately when you learn that an employee is considering making a complaint or disclosure.
The first and most immediate reason why an appropriate response is important is the avoidance of risk and liability. If an employee is raising a potential liability (whether it be for workplace harassment or unjustified disadvantage or whatever) you really don’t want to compound your problems by creating another liability out of the way you and your employees respond.
Most importantly, the second reason why you need to respond appropriately is to foster a positive culture in your workplace. A positive workplace means employees who are more productive and prepared to boost your business, even go above-and-beyond the strict requirements of their jobs. This is a little less direct (than avoiding an immediate liability) and represents a medium to long term investment in your business.
So how does the way you respond to complaints and disclosures in the workplace affect workplace culture? Simple really. Respond the right way, and staff feel happy and supported. Respond the wrong way, and staff will feel unhappy, unsafe, and insecure – they will spend their time avoiding trouble rather than making your business the best it can be.
Liability could arise in a couple of ways. The Human Rights Act has a specific provision protecting employees from being treated less favourably than they would be ‘but for’ the complaint/disclosure. Breaching that provision could have serious financial implications, although it is limited in the matters which it covers. Then there’s the Employment Relations Act. An employee who believes they are being treated less favourably than they would be but for making or considering making a complaint/disclosure could bring a personal grievance for unjustified disadvantage.
The core message here is that while you may have negative feelings about it when you learn about an employee who has made or is considering making a complaint/disclosure, you must quickly let those feelings go by the wayside. You must make sure the employee does not suffer any disadvantage as a consequence of their complaint/disclosure.
As an employer, all of this applies not only to how you respond but also to how your other employees respond. You are responsible for the behaviour of your employees in the workplace and you must make sure they do not treat their co-worker adversely because of a complaint/disclosure or an intended one.
Exactly how to respond to an employee making or considering a complaint or disclosure is a complex issue. You may have concerns about the employee’s truthfulness or their reasons for acting, but you can’t rely on those concerns to disregard what the employee is saying. As the employer you will also have different sets of interests to look after – the interest of the business, the interests of the complaining/disclosing employee, and the interests of any other employees who may be affected (and may themselves be under a cloud as a result of the complaint/disclosure). In those circumstances coming up with the right response will definitely take careful thought and often will need expert help.
If you require any advice or further information on the matters dealt with in this publication please contact the lawyer at Farry and Co. who normally advises you, or alternatively contact:
Wallace Revell
wrevell@farry.co.nz
09 379 0055 or 03 477 8870
The information contained in this publication is intended as a guide only. It does not constitute legal advice and should not be relied upon as such. Professional advice should be sought before applying any of the information to particular circumstances. While every reasonable care has been taken in the preparation of this publication, Farry and Co. does not accept liability for any errors it may contain.