Ignoring a problem and hoping it will go away, can lead to bigger problems later. Delays can also create added frustration and “avoidable distress”, with productivity, legal and cost consequences.
There should be a plain language process for problem resolution in all employment agreements. This can help protect people’s rights and provide information to support decision-making. It can also help ensure that a problem doesn’t get worse through inconsistencies or misunderstandings.
In some cases, not following the process can cause the breakdown of the employment relationship and lead an employee to claim unfair treatment, so it’s important to get the process right.
First steps in dealing with a problem
If an employer or employee thinks there is a problem, it should be raised as soon as possible. Everyone should try in good faith to resolve any problems themselves before looking for outside assistance.
No one should jump to conclusions when an issue is first raised. Any decisions should be made fairly and consistently. This is usually not complicated – people should gather information and think before acting.
In all cases, everyone should treat each other with respect and consideration, and deal with issues in a confidential manner, for example, interviews and discussion should not happen in public or open-plan spaces. Everyone should try to set aside emotion and concentrate on identifying and addressing the underlying reasons for the problem.
It may help to have a third party present when a problem is discussed, to prevent misunderstandings. For instance, an employee may want to have a support person, union delegate or other representative present, a manager may want to have their manager present. Both sides should keep notes of any meetings and any agreements reached.
It is a good idea to:
- Check policies, processes, and agreements if you haven’t already when you were clarifying the problem.
- Be clear about the facts – Make sure that what each party thinks has happened, or is happening, is not just based on an assumption or a misunderstanding.
- Talk to each other - Employers and employees should try to resolve the problem by discussing it with each other. Both parties are responsible for this. Employees can ask their lawyer or union, and employers can ask their lawyer, to approach the other party for them.
- Clarify whether there is a problem, and if so, what it is - Do not delay. The problem should be fully discussed as soon as possible to clarify what it actually is. It is often not what it seems to be, so make sure you understand the problem. Check you are not just focusing on a symptom of the problem, but understand the whole problem. Employers need to remember to treat employees consistently and objectively.
- Consider what assistance is needed to help resolve the problem - Parties may consider whether early resolution or mediation assistance might be useful at this stage.
Our Early Resolution Service is a free phone-based service for employees and employers providing assistance to resolve a workplace issue early, quickly, and informally, before it becomes too serious or needs a more formal process.
If a problem can’t be resolved or assistance is needed to help resolve it, parties can go to mediation, either through the Employment Mediation Services or through independent mediators.
If an employee believes they have a personal grievance, they must raise it with their employer within 90 days of the incident, or the date they became aware of it, whichever is the later. An exception to this is sexual harassment.
For sexual harassment claims, the period for raising a personal grievance extended from 90 days to 12 months from 13 June 2023. This means employees have 12 months to report sexual harassment behaviour from the moment it happened, or the date they became aware of it, whichever is later.
The 12-month timeframe applies from 13 June 2023 and is not retrospective. This means it applies only if the alleged sexual harassment happened on or after that day. If it happened before, then the shorter 90-day rule applies.
If you cannot resolve your problem through mediation, you can take further action.
Breaches to minimum employment rights and exploitation
Anyone who sees or suspects a breach of minimum employment rights should report it.
You will need to complete our online reporting form, or call us on 0800 200 088. Our call centre is open Monday to Friday, 8.00am to 5.30pm excluding public holidays.