Staff Complaints Toolkit

• Flowchart of Staff Complaints Process
• Conflict of Interest
• Investigating the Complaint
• Unlawful Discrimination and Harassment
• Dealing with Equity & Diversity Complaints: advice for Managers/Supervisors
• Resources for Staff Members Making, Investigating or Resolving Complaints
• Complaints by Staff Policy & Guidelines
• Staff Complaints Notes Template

Flowchart of Staff Complaints Process

This tool provides a flowchart of the staff complaints process and the various steps required in the process.

Conflict of Interest

(see also the University's Close Personal Relationships Policy)

It is important that the process used for resolving complaints is fair and transparent. A conflict of interest may arise for a number of reasons, including (but not limited to) the following:

• supervisors may have a personal relationship or friendship with one or more of the parties in a complaint;
• supervisors may feel that their personal opinion or belief on an issue prevents them from being impartial;
• supervisors may feel that their previous dealings with one or more of the parties to a complaint may affect their judgement.

A conflict of interest does not always mean that supervisors cannot proceed to resolve the complaint. However, supervisors should either make it clear that there is a conflict that prevents them handling the complaint and refer the staff member to another supervisor, or make any potential conflicts known to the complainant and give them the option of talking to a different supervisor.

Investigating the Complaint

• Hearing the story
• Exploration of options and consequences
• Different methods of investigating a complaint and making a decision
• Ensuring support for parties to a complaint
• Minimising possible victimisation
• Re-establishing positive relationships

Hearing the story

Invite the staff to explain their complaint:

• It is often useful to let people tell their story before you ask any questions or make any comments; this can help diffuse any tension or anger that staff may have and ensure that you don't comment inappropriately.

Treat the complaint seriously by:

• indicating through your posture and responses that you are actively listening
• avoiding unnecessary interruptions and distractions
• avoiding judgements based on the presentation of the complaint or the complainant.

Make your limits clear:

• If you don't have very much time, be clear about this so that the staff can choose to come back at another time.
• If you think the staff member would benefit from talking to a different member of supervisor, explain who that would be and why you are making the suggestion. It may be possible to help arrange an appointment and provide a summary of the information already discussed, with the staff member's permission.

Check that you have understood the complaint:

• Repeat the essence of the complaint back to the staff member.

Informing the Respondent:

• Make sure that you give the respondent sufficient time to respond to the allegations.

You need to consider the implications of seeking statements from third parties before getting the response. Failing to allow a respondent to have the opportunity to respond prior to involving other people unnecessarily in the investigation process is unfair. It may also be unproductive in terms of organisational resources spent in investigation activities.

The key to determining when to seek statements is whether delay will increase the risk of the respondent repeating the behaviour of which they are accused, whether crucial evidence will be removed or sabotaged and whether there is a risk of confidentiality being breached and others learning of the allegations before the respondent has had time to address the allegations.

Exploration of options and consequences

It is important to explore all of the options available with the complainant to avoid one of the most common, and most easily preventable, complaint handling problems - unintended consequences. Often a process or outcome can develop in unexpected ways, which result in detriment to the complainant.

The easiest remedy is to explore all the options:

• what does the complainant want or need in order for this matter to be resolved? For example, an apology (written or verbal), a change to a process, an investigation (how can it be conducted in order that they have confidence in the investigator and will accept the findings?), disciplinary action against another party;
• what are all of the possible steps involved in the chosen option? What are likely to be the best possible outcomes and what is unpredictable or could go wrong?;
• what is the balance between the option that the complainant prefers and the option most appropriate for the organisation?;
• encourage the complainant to explore all the options even if they arrive with a scenario in mind;
• encourage the complainant to take time to think about what has been discussed and seek more information if necessary and to make a choice in as calm and considered a manner as possible. This may delay the process but is a good investment.

Different methods of investigating a complaint and making a decision

Alternative Dispute Resolution (ADR) is the term used to describe a range of processes for resolving or settling complaints and disputes outside the court system. All of the different processes described here involve a third party (the supervisor trying to resolve the complaint).

Supervisors should use their judgement when deciding which, if any, of these methods is most appropriate for resolving a complaint. There are many examples of good practice at the University and often the best approach is a mixture of common sense and experience. Supervisors new to complaint handling are encouraged to raise queries with Human Resources.

Facilitative Processes

Facilitative processes involve an independent third party, with no advisory or determinative role, who provides assistance in the process of resolving a complaint (including facilitation, conciliation and mediation).

A facilitative process aims to reach a consensual agreement with all concerned. It is only viable when all parties believe a resolution is possible and are willing to work to that end.

The processes vary in the extent to which the third party intervenes in the process in order to achieve a resolution. In practice a third party may adopt aspects of each of the processes during disputes resolution.

• Facilitation involves making arrangements so that it is easier for the parties involved to meet to reach an agreement on action to be taken. The tasks may vary from arranging the meeting and venue, to hosting the discussion and providing documents to assist the parties consider the solutions offered by the other party.

• Conciliation is a process in which the third party (the conciliator), assists the parties involved to identifying the problems to be resolved, acknowledges injured feelings and identifies the positive opportunities emerging through the interactions, and actively encourages them to accept an offer of resolution. The conciliator's focus is on acknowledging the feelings of the parties so they can focus on the actions needed to restore the working relationship.

• Mediation is a process in which a third party (the mediator), acts as an intermediary between the opposing parties and intercedes on behalf of the other party in order to assist all parties reach a solution. Activities might include identifying the key problems to be resolved, developing options, considering alternatives and reaching an agreement. The mediator may advise on or determine the process of mediation and communicate separately with the parties involved.

Advisory Processes

Advisory processes involve an independent third party who investigates the complaint and provides recommendations on possible outcomes (includes independent fact finding, evaluation and case appraisal). Advisory processes gather and present information to a person responsible for making a judgement.

Investigation

Investigation is a process in which all parties present arguments and evidence to an impartial third party (the investigator) who determines the facts of the dispute but does not make any judgements.

This may be useful in complex cases when it is not possible to substantiate allegations or establish facts, or when it would be useful for a third party to review and summarise the information gathered so far, ie. where an impartial view would add value.

Ensuring support for parties to a complaint

Staff may be distressed in relation to their complaint and may be nervous when talking to supervisors. The following actions are recommended for supervisors talking with complainants who may be upset, crying, withdrawn or confused:

• provide some privacy;
• remain calm and reaffirming;
• when the staff member regains their composure, ask if they are able to explain their concerns or if they would like to come back;
• offer to have the staff member return with a support person;
• paraphrase, summarise and clarify what they are saying to convey understanding to the staff member and to check that you are clear about their concerns;
• depending on the chosen course of action, it may be useful to arrange a follow up time for the staff member to talk to you again.

Staff who are at risk of harm to self or others may present as angry, agitated or threatening, or may be experiencing a psychiatric episode. Supervisors may wish to refer to section 3.3 of the University Emergency Management Plan (threatening behaviour) in addition to the suggestions given above.

Minimising possible victimisation

It is important that the supervisor identifies points of potential victimisation and develops strategies to deal with them.

• How can information be handled in order to ensure that only relevant people are involved and these people are bound to observe proper processes? It may not be appropriate to use a fax machine located in a public office or reception area, or to leave messages on answer phones that may be accessed by more than one person.
• How can natural justice be observed and safety maintained? If another party to the complaint needs to be informed and given the opportunity to respond and the complainant is frightened (with or without established reason), what measures can be put in place? It may be appropriate to take a staff's home address details off the management information system and arrange security escorts to and from campus.
• How can the outcomes of a complaint be handled to ensure no one is victimised at a later stage? This can occur when disciplinary action results in a department or area taking sides and resenting the complainant, when gossip leads to exclusion of one or more of the parties or when damaging comments are made about a staff member or supervisor in their professional field. Points to consider include who will be responsible for providing future references for the staff member and how long will documentation regarding the complaint be kept, and by whom.

Re-establishing positive relationships

As a final step in handling complaints, supervisors should consider any action that may re-establish positive working, learning and teaching relationships for all parties to a complaint. This might be achieved by:

• being explicit about all parties' rights and responsibilities;
• getting agreement between parties on future behaviour;
• facilitating a meeting (formal or informal) for parties to talk about future arrangements; and
• being clear about the expectations on all parties.

It will not always be possible or appropriate for this to occur; sometimes it will be in everyone's best interest for arrangements to be made that minimise the level of contact necessary between parties to a complaint.

It is important that all parties are told who to approach if problems occur following the resolution of a complaint to enable quick intervention and prevent the escalation of another complaint.

Unlawful Discrimination and Harassment

Staff should refer to the Fair Treatment Policy and Guidelines for Staff.

What is unlawful harassment?

Under federal and state legislation unlawful harassment occurs when someone is made to feel intimidated, insulted or humiliated because of their race, colour, national or ethnic origin, sex; disability, sexuality, age or some other characteristic specified under anti-discrimination or human rights legislation. It can also happen if someone is working in a 'hostile' – or intimidating – environment.

Harassment can include behaviour such as:

• telling insulting jokes about particular racial groups
• sending explicit or sexually suggestive emails
• displaying offensive or pornographic posters or screen savers
• making derogatory comments or taunts about someone's race or religion
• asking intrusive questions about someone's personal life, including their sex life.

Harassment is any behaviour, which the recipient believes is disrespectful, embarrassing, humiliating, or intimidating, but to be unlawful:

• the behaviour must relate to an attribute named in the anti-discrimination laws, and
• it must be such that 'a reasonable person' would expect (taking all the circumstances into account) that the behaviour would result in the recipient feeling offended, intimidated or humiliated.

Victimisation

A quite common development in discrimination and harassment cases is that, after a person makes a complaint inside the organisation, they are punished in some way. This is called victimisation and it is unlawful.

The legal definition states that it occurs when a person is subjected to some sort of detriment (or negative consequence) because they have made or propose to make a complaint appear as a witness or provide information about a complaint.

Examples of detriments would be a transfer, abuse, intimidation, and less favourable treatment, including dismissal.

The nature of harassment/discrimination

Harassing behaviour can range from serious to a less serious nature, however one-off incidents can still constitute harassment. Also, where continued, such behaviour can undermine the standard of conduct within a work area, which may erode the well being of the individual or group being targeted and lead to lower overall staff performance.

The absence of complaints is not necessarily an indication that no harassment or discrimination is occurring. The person subjected to harassing or discriminating behaviour does not always complain. This is not necessarily, because the act is deemed as trivial, but because the people may lack the confidence to speak up on their own behalf or feel too intimidated or embarrassed to complain.

Hostile working environment

Employers also need to be aware of their responsibilities to ensure that the working environment or workplace culture is not sexually or racially 'hostile'. Examples of a potentially hostile working environment are where pornographic materials are displayed and where crude conversations, innuendo, or offensive jokes are part of the accepted culture. A person has the right to complain about the effects of a sexually or racially hostile working environment, even if the conduct in question was not specifically targeted at them.

What harassment/discrimination is not

Workplace harassment or discrimination must not be confused with legitimate comment and advice (including relevant negative comment or feedback) from managers and supervisors on the work performance or work related behaviour of an individual or group.

The process of providing feedback to staff during a formal performance appraisal, or counselling staff regarding their work performance, will not always be free of stress. Managers should manage these processes with sensitivity, but they should not avoid their responsibility to provide full and frank feedback to staff.

What is racial harassment?

Racial discrimination happens when someone is treated less fairly because of their race, colour, descent, national origin or ethnic origin than someone of a different 'race' would be treated in a similar situation. This is known as 'direct discrimination'. Racial discrimination can also happen when a policy or rule that treats everyone in the same way has an unfair effect on more people of a particular race, colour, descent, or national or ethnic origin than others. This is known as 'indirect discrimination'. Unlike direct discrimination, indirect discrimination may be justified if the policy or rule is reasonable and relevant to the particular circumstances.

Racial hatred is defined as being a public act, which is likely to offend, insult, humiliate or intimidate a person or group of people and which is based on race, colour, descent, national or ethnic origin. Racial Harassment is any verbal, physical or written act which is based on a person's race, ethnic background, nationality, language or cultural background, and is unwanted, unacceptable and offensive to the person.

What is disability harassment?

The DDA makes it unlawful for harassment in relation to a disability, or based upon a relative or associate having a disability. Examples of harassment on disability grounds include:

• humiliating comments or action about a person's disability, such as insults
• comments or action which create a hostile environment
• overbearing or abusive behaviour towards staff with intellectual disabilities
• disparaging remarks to staff who have made compensation claims.

What is sexual harassment?

Sexual harassment is an unwelcome sexual advance, unwelcome request for sexual favours or other unwelcome conduct of a sexual nature, which makes a person, feel offended, humiliated and/or intimidated, where a reasonable person would anticipate that reaction in the circumstances.

The Sex Discrimination Act defines the nature and circumstances in which sexual harassment is unlawful. It is also unlawful for a person to be victimised for making, or proposing to make, a complaint of sexual harassment to the Human Rights and Equal Opportunity Commission.

Whether the behaviour is unwelcome is a subjective test: it looks at how the conduct in question was perceived and experienced by the recipient, rather than the intention behind it.

Whether the behaviour was offensive, humiliating or intimidating is an objective test: it looks at whether a reasonable person would have anticipated that the behaviour would have this effect.

What is age discrimination?

The Age Discrimination Act 2004 (ADA) makes it unlawful to treat people less favourably because of their age, protecting both younger and older Australians. When you are treated unfairly or harassed because of your age - for example, because people think you are too old, too young or too middle aged. Forcing people to retire at the old retirement age is also against the law.

Direct age discrimination happens when a person is treated less favourably because of their age than a person of another age group would be treated in the same or similar circumstances. It could be direct age discrimination if a person who is the best person for the job is not employed simply because of their age.

Discrimination also happens when there is a requirement or condition or practice that is the same for everyone but disadvantages a person because of their age. If the requirement is unreasonable, it could be indirect age discrimination.

It could be indirect discrimination if an employer requires an older person to meet a physical fitness test, which more young people can to meet, if the fitness standard is not reasonable for the job in question. However, the ADA states that it is not unlawful to discriminate against a person because of their age where a person can not perform the 'inherent requirements' of a job.

Harassment on the grounds of sexuality

Gay men and lesbians face widespread discrimination on the basis of their sexual identity as do persons of trans-gender identity. Australia's international human rights obligations require governments to take all necessary measures to eliminate such discrimination.

Harassment on grounds of sexuality includes that towards homosexuals, heterosexuals, bi-sexuals or transsexuals and transgender and intersexed people. Examples include:

• jokes in which sexuality is a significant characteristic or the "butt" of the joke;
• hostile comments about assumed sexual or social activities; and
• hostility based on an assumed AIDS or HIV infection.

Bullying

Bullying is a form of harassment, which may not be based on an attribute listed in the anti-discrimination laws. Attributes covered by these laws include, for example, gender, ethnic background and marital status. But someone may be bullied because of their personality or simply because they had the misfortune to work alongside a colleague who abused their position.

Even when the bullying doesn't come under the anti-discrimination laws, it's likely to be unlawful under Occupational Health and Safety Laws (OHS) and bullying also goes against the Common Law Duty of Care. Under these provisions an employer has a duty to take reasonable care for the health and safety of employees. Failure to do so can amount to negligence and an employer can be held liable if they did not take reasonable steps to prevent bullying.

Dealing with Equity & Diversity Complaints: advice for Managers/Supervisors

• Cultural diversity and special circumstances
• Disabilities
• Gender
• Indigenous Australian staff
• Religious beliefs
• Sexuality

Cultural diversity and special circumstances

The University celebrates its cultural diversity. Supervisors are not expected to be experts in the many cultures and communities present at the University of Adelaide but they are expected to be aware that there are differences and to communicate respectfully with all members of the University community.

Supervisors dealing with complaints may wish to consider the following:

• people from some cultures are reticent about making a complaint. This may be because complaints are not a preferred or culturally appropriate way of resolving a problem, because they fear doing so will brand them a trouble maker or because they feel their supervisor will not deal with the issue tactfully.
• there may be a different emphasis on priorities - in many Western cultures people will say the most important thing first in a conversation but for others it will be said last.
• staff, particularly at lower levels, may be anxious to please, not be seen to cause conflict and not expand on an issue without invitation.

Supervisory staff need to be aware of these dynamics and not assume all is well because there are no complaints.

Supervisory staff can assist in breaking down some of the barriers by:

• ensuring staff are aware of options for raising concerns;
• being creative with ways of dealing with an issue without it being a complaint;
• ensuring staff understand the University and the local area values complaints as a means of continuous improvement;
• assuring staff that there will not be any victimisation or other recriminations for making a complaint, and that it will not affect their career prospects within the University or through references;
• inviting the parties to a complaint to have a support person with them;
• allowing staff to express a preference about the gender of the person to whom they wish to speak or to request that a senior person of their race or religion be present or be consulted in processes of resolution.

Disabilities

There is a long history of exclusion and discrimination against people with a disability and in Australia there is a relatively recent social revolution around the rights of employees with a disability. Supervisors should be aware that staff with a disability may have faced discrimination in all areas of their lives and an issue at University may be difficult for them to separate from their experiences elsewhere. It may be useful to clearly separate the issues raised and re-establish the context for resolving the complaint. Supervisors can assist in breaking down some of the barriers:

• never assuming they know either what a staff member with a disability can do, will want or what is best for them.
• inviting staff to have a support person with them;
• checking any access or comfort issues;
• checking the length of meeting that the staff member feels comfortable with;
• remembering that the Disability Discrimination Act 1992 (Cth) also prohibits discrimination against those associated with a person with a disability.

Gender

Depending on the culture and community that staff members are from, men and women often have very different roles in bringing forward a complaint.

Men and women may describe an issue very differently, express their emotions differently, and value personal interactions differently. It is not always an indication of the depth of feeling or the importance a particular issue has to the individual. There may also be a different impact on continued productivity between men and women, for example if the staff member no longer feels comfortable in an environment.

There is much evidence that women do not progress at the same rates in their careers in universities in Australia and this may influence appropriate styles of resolution of complaints. Both female and male supervisors need to be aware of the impact of their attitude to women, their style of communication and the impact of their role modelling.

Indigenous Australian staff

Indigenous staff are in a significant minority in the University of Adelaide and that may influence their comfort in raising issues and complaints. Supervisors should be aware of this and where they need assistance, should feel free to seek it from the Director of the Centre for Australian Research and Studies.

Religious beliefs

Supervisors are advised to make themselves aware of particular religious and cultural festivals relevant to the staff in their area and to encourage a team appreciation of these. This may impact on issues of:

• work allocation;
• timing of meetings;
• manner of resolutions agreed to.

In some instances, where, for example, the religion of a staff member is directly related to the content of the complaint, it may be appropriate for the Supervisor to acknowledge elders or leaders of a religious community when resolving a conflict or to organise a forum where members of an academic unit and members of the religious community can reach a resolution on an issue of concern.

Sexuality

Managers/Supervisors should not assume anyone's sexuality and should use inclusive language such as partner as opposed to husband/wife/boyfriend/girlfriend. Staff may not wish to disclose their sexuality outside of its relevance to a complaint and confidentiality should be respected.

Resources for staff members making, investigating or resolving complaints

Internal contacts

• Consulting Services
• Disability Access Adviser, Trevor Dunne 8303 4673
• Occupational Health and Safety Unit, North Terrace Campus

External contacts

• Equal Opportunity Commission (SA) or the Human Rights and Equal Opportunity Commission
• Employees Assistance Program (EAP) (08) 8354 9200 (business hours) or 0418883855 (after hours, weekends and public holidays). A free, anonymous and confidential service for supervisor with counsellors specialising in conflict resolution, individual stress management, career counselling, family therapy and grief and loss counselling.

Legislation

A list of relevant legislation can be found on the Equity & Diversity website.

Sexuality and Age Discrimination

Discrimination on the grounds of sexuality and age are covered by state legislation. The relevant legislation is the Equal Opportunity Act 1984 (SA)

Other useful resources include information for gay men and lesbian women and information for older Australians on the HREOC website.

Bullying

Excellent resources from the Office of the Employee Ombudsman and the WorkCover Corporation are available through Human Resources from the OH&S Unit.