Protect my Business against Unhappy Employees: A Guide for Employers

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How do I protect my business against unhappy employees?  Throughout the course of operating a business, it is almost inevitable that an employer will face the situation where they have a disgruntled employee. The larger the business, the greater those chances are. When dealing with an unhappy employee, there are several steps an employer should take to attempt to minimise the impact this will have on the business overall.

If it has been brought to your attention that an employee is unhappy about a circumstance in the workplace, it is important that you seek to address the situation promptly and directly with that employee. Addressing the situation quickly decreases the chance of it escalating if left unresolved. In particular, the employer should be aware of the rights of the employee to raise issues of concern with their employer.

Workplace Rights of the Employee

Under the Fair Work Act 2009 (Cth), it is one of the protected workplace rights for an employee to make complaint or enquiry with regards to their employment, to their employer or to an external organisation such as the Fair Work Ombudsman. For example, if an employee is unhappy about their pay, they have the right to enquire about their entitlements to the Fair Work Ombudsman.

When an employee makes such complaint or enquiry, the employer must act in accordance with legislation in dealing with that complaint or enquiry. All reasonable steps should be taken to promptly and fairly address the concern with the employee.

It is important for the employer to ensure that they have reasonably considered the complaint, and that they communicate with the employee about the options that are available to address the concern. This may include making a reasonable adjustment to the working environment to accommodate a physical need of an employee, being flexible about the working arrangements of an employee (for example, where they have impeding parental responsibilities), or properly investigating complaints which relate to other staff in the workplace.

We have seen in cases such as Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd (No 4) [2013] FCA 762, that where an employee has made a complaint about the bullying behaviour of a colleague, it is important that the employer address such complaints consistently throughout the workplace.

To assist in ensuring such consistency, it would be prudent for an employer to develop a clear written policy on how such complaints are to be dealt with, and to ensure that this policy is readily available for all staff.

Keep Records

As you go through the process of addressing the concerns of an employee, we recommend that you document all communications you have had with the employee or others about the situation. This way, if you are ever called to account for actions, you will have documented evidence of what happened.

Work with the Employee to resolve the Issue

We always recommend that an employer attempt to resolve employee concerns by reaching an agreed outcome with that employee where possible. In dealing with an unhappy employee, it usually greatly helps the situation when the employee feels as though they have been listened to. Attempt to work with the employee to create an action plan to resolve the issue. We tend to see a lot of employment disputes arising from a communication break down between the employer and the employee – this can be avoided where the parties are open to having frank discussions with each other and exploring possibilities for a resolution.

An employer does not need to appease every request or demand of an employee, but the employer must have taken reasonable steps to address and accommodate employee concerns.

Further, where discussions with an employee relate to their ongoing employment, be sure to notify the employee of their right to bring a support person with them to any meetings you have with them about this.

Where no resolution can be agreed upon

If you have considered the complaint of the employee, you have discussed with them the reasonable options for resolving the problem, and the employee is still not happy with the outcome, the employee may need to consider whether they would like to continue working with you. Again, this should be a point for discussion, and the employee should not be made to feel as though they are being forced to resign.

Current employment law has streamlined the process for an employee to bring an action against their employer or former employer before the Fair Work Commission. Unfortunately, there is nothing an employer can do to prevent an employee from filing an action, however, how well you communicate and work with the employee leading up to the conclusion of the matter will vastly impact the likelihood of an employee feeling as though they have been treated unfairly and wanting to get the Fair Work Commission involved. Workplace disputes are costly and stressful and should be avoided wherever possible.

Unlawful Adverse Action

An employer cannot take adverse action against the employee for making a complaint or inquiry. Adverse action includes things such as:

  • Dismissal (including forcing an employee to resign);
  • Injuring the employee in employment (ie issuing a written warning);
  • Altering the position of the employee to his/her prejudice (ie demotion);
  • Discriminating against an employee;
  • Actions or threats intended to coerce the employee;
  • Knowingly or recklessly making false misrepresentations to an employee;
  • Inducing a person to be/not be a union member.

If you take an adverse action against an employee because that employee exercised their workplace right to make a complaint or enquiry concerning their employment, then your adverse action will be considered unlawful and may be subject to penalty.

Importantly, all of the reasons for a decision to dismiss an employee are relevant for the purposes of these legislative protections. The fact that the employee exercised their workplace right need not be the main reason for the adverse action – it is sufficient for it to be just one of the operative reasons for decision. Therefore, the motives of the decision maker are highly relevant in these types of matters.

In Summary

In summary, we always recommend responding to employee complaints quickly and directly, ensuring that everything is documented and that the employer has taken all reasonable steps to investigate and address the complaint. Keep the communication lines open with the employee and try as best you can to reach an agreed settlement with the employee. Remember that you should not take adverse action against an employee based wholly or in part on the fact that they have exercised their workplace right to make a complaint or enquiry relating to their employment.

If you’re still asking “How do I protect my business?” from an employment perspective, contact us

Call (07) 3252 0011 and speak with one of our Business Development Team to book an appointment with one of our employment lawyers today.

This article was written by Eduardo Cruz (Senior Associate) and Natasha Duff (Senior Lawyer).