Reviewing GrievancesReviewing Grievances

at theat theAustralian National UniversityAustralian National University

PresenterPresenter

Bradley Beasley Bradley Beasley LLM, LLB, Grad Cert Legal PracticeLLM, LLB, Grad Cert Legal Practice

Legal Practitioner Legal Practitioner of the: of the:

Supreme Courts NSW, ACT; and Supreme Courts NSW, ACT; and

High Court of AustraliaHigh Court of Australia

OverviewOverview IntroductionIntroduction

Evidence ActEvidence Act

Example LettersExample Letters

RisksRisks

Scenarios’Scenarios’

Check ListsCheck Lists

StepsSteps

ContactsContacts

Questions & summing upQuestions & summing up

Self Leaning Reading pack: Self Leaning Reading pack: TheoryTheory MotivationMotivation StressStress University Related PoliciesUniversity Related Policies

IntroductionIntroduction  What is a What is a grievance? grievance?

It is a subjective matter, it arises when It is a subjective matter, it arises when “a “a staff member feels aggrieved about a staff member feels aggrieved about a

matter associated with his or her matter associated with his or her employment conditions, or when he or she employment conditions, or when he or she

disagrees with a decision, action or disagrees with a decision, action or behaviourbehaviour in the workplace by a fellow in the workplace by a fellow worker, supervisor or manager that may worker, supervisor or manager that may affect the working relationship or work affect the working relationship or work

environment.”environment.”[1]

[1] The Australian National University., Procedure for Staff Grievance Resolution The Australian National University., Procedure for Staff Grievance Resolution Procedure, Approved 1 November 2007, Procedure, Approved 1 November 2007, http://info.anu.edu.au/Policies/_DHR/Procedures/Grievance_Resolution_Procedures.asp

IntroductionIntroduction

What is a What is a grievance?grievance?

It has traditionally been looked It has traditionally been looked upon as trying to resolve matters upon as trying to resolve matters

at an early stage to facilitate at an early stage to facilitate harmony within the workplace.harmony within the workplace.

IntroductionIntroduction

A successful grievance process is A successful grievance process is one that that is one that that is “capable of “capable of

responding effectively to new or responding effectively to new or specialised circumstances”.specialised circumstances”. [2]

[2] Tomas R Knight., Tomas R Knight., Industrial and Labour Relations Review, Industrial and Labour Relations Review, Vol 39, Vol 39, No 4 (July 1986) Cornell UniversityNo 4 (July 1986) Cornell University

IntroductionIntroduction

The purpose of a grievance The purpose of a grievance procedure is to deal with a matter procedure is to deal with a matter quickly, to save costs and attempt quickly, to save costs and attempt

to resolve them “to resolve them “at the lowest at the lowest possible level … without the possible level … without the

intervention of third parties”intervention of third parties”..[3]

[3] Tomas R Knight., Tomas R Knight., Industrial and Labour Relations Review, Industrial and Labour Relations Review, Vol 39, Vol 39, No 4 (July 1986) Cornell UniversityNo 4 (July 1986) Cornell University

Evidence ActEvidence Act

Review Folder MaterialReview Folder Material

ExampleExampleLettersLetters

Review Folder MaterialReview Folder Material

RisksRisks

It is important to understand that It is important to understand that some issues may result is broader some issues may result is broader

issues that need to be addressed and issues that need to be addressed and they may have a significant impact on they may have a significant impact on

individuals, the University, and the individuals, the University, and the community.community.

RisksRisks

If matters are not addressed If matters are not addressed professionally and in a timely manner professionally and in a timely manner

this could result in third party this could result in third party involvement, this could end up in a involvement, this could end up in a

public hearing, an award being made, public hearing, an award being made, cost and penalties being imposed on cost and penalties being imposed on

the parties.the parties.

RisksRisks

So do not think that a process arising So do not think that a process arising out of legislation, Industrial out of legislation, Industrial

Instruments and/or University policy Instruments and/or University policy have no implications, because they have no implications, because they

can. can.

Scenarios’Scenarios’

Review Folder MaterialReview Folder Material

Risks Scenario Risks Scenario

Policy Policy On 7 August 2007 the Full Court of the Federal Court handed down an appeal On 7 August 2007 the Full Court of the Federal Court handed down an appeal decision in decision in Goldman Sachs JB Were Services Pty LtdGoldman Sachs JB Were Services Pty Ltd v Nikolichv Nikolich [2007] FCAFC 120. [2007] FCAFC 120.

Mr Nikolich commenced employment with Goldman Sachs JB Were as an Mr Nikolich commenced employment with Goldman Sachs JB Were as an investment adviser in May 2000. investment adviser in May 2000.

The Company policy included provisions on integrity, safety, harassment and The Company policy included provisions on integrity, safety, harassment and grievance procedures. Mr Nikolich was required to sign and return a form grievance procedures. Mr Nikolich was required to sign and return a form acknowledging some of the provisions of the Policy. acknowledging some of the provisions of the Policy.

In early 2003 Mr Nikolich's relationship with his immediate supervisor In early 2003 Mr Nikolich's relationship with his immediate supervisor deteriorated.  Mr Nikolich made complaints about the supervisor's conduct.  Mr deteriorated.  Mr Nikolich made complaints about the supervisor's conduct.  Mr Nikolich did not believe that the complaints were properly handled and he Nikolich did not believe that the complaints were properly handled and he developed a psychological illness that he attributed to his employment.  developed a psychological illness that he attributed to his employment. 

He was absent from work due to illness for a significant period of time and his He was absent from work due to illness for a significant period of time and his employment was ultimately terminated. employment was ultimately terminated. 

Mr Nikolich commenced proceedings in the Federal Court for damages on the Mr Nikolich commenced proceedings in the Federal Court for damages on the basis that the employer had breached certain contractual promises that he basis that the employer had breached certain contractual promises that he alleged were in the volume of HR policiesalleged were in the volume of HR policies

Although the Court found that the Although the Court found that the “Grievance Policy”“Grievance Policy” did not form part of the did not form part of the contract of employment, he was still awarded substantial damages. contract of employment, he was still awarded substantial damages.

The message arising out of this decision is: The message arising out of this decision is: “ensure that University policy and “ensure that University policy and procedures are followed”.procedures are followed”.

Risks Scenario Risks Scenario Industrial InstrumentsIndustrial Instruments

On 11 April 2008 in the On 11 April 2008 in the National Tertiary Education National Tertiary Education Industry Union v Central Queensland UniversityIndustry Union v Central Queensland University

[2008] FCA 481 (11 April 2008) the Federal Court [2008] FCA 481 (11 April 2008) the Federal Court ordered Central Queensland University to pay the ordered Central Queensland University to pay the NTEU $6,600 for failing to consult it about staff NTEU $6,600 for failing to consult it about staff

cuts last year in breach of their enterprise cuts last year in breach of their enterprise agreement with an extra $400 in fines is to be paid agreement with an extra $400 in fines is to be paid

to the Commonwealth.to the Commonwealth.

Risks Scenario Risks Scenario Not taken seriouslyNot taken seriously

In In Simon Dennis Arquall v Jamaica Blue Pty Limited trading as Simon Dennis Arquall v Jamaica Blue Pty Limited trading as Jamaica Blue HarboursideJamaica Blue Harbourside [2002] NSWCIMC 113 (23 July 2002) [2002] NSWCIMC 113 (23 July 2002) Mr Arquall: Mr Arquall:

Raised a complaint.Raised a complaint.

Alleged his employer owed him $4,380.08 under the Alleged his employer owed him $4,380.08 under the Restaurant Employees (State) Award and the Annual Holidays Restaurant Employees (State) Award and the Annual Holidays Act for the period 1 September 1999 to 10 February 2000.Act for the period 1 September 1999 to 10 February 2000.

Complaint was dismissed by the employer. Complaint was dismissed by the employer.

Proceeded to have his matter dealt with before the Courts as Proceeded to have his matter dealt with before the Courts as a small claim under the a small claim under the Industrial Relations Act 1996 (NSW)Industrial Relations Act 1996 (NSW). .

Was successful in pursing his claim. Was successful in pursing his claim.

In such cases a staff member would also be entitled to costs In such cases a staff member would also be entitled to costs and interest.and interest.

Risks Scenario Risks Scenario In ActionIn Action

In In Tak Wah Lau v Carlton & United Breweries Pty Ltd Tak Wah Lau v Carlton & United Breweries Pty Ltd [2005] NSWCIMC 34 (12 [2005] NSWCIMC 34 (12 April 2005) a former employee of Carlton & United Breweries Limited (“CUB”) April 2005) a former employee of Carlton & United Breweries Limited (“CUB”) Mr Lau pursued a claim when the employer failed to meet his demands. Mr Mr Lau pursued a claim when the employer failed to meet his demands. Mr Lau:Lau: Worked as a canning line operator with CUB from 20 June 1994. Worked as a canning line operator with CUB from 20 June 1994.

Was transferred to the bottling line when the canning line was closed June Was transferred to the bottling line when the canning line was closed June 2002. 2002.

Was terminated when his position was made redundant on 1 July 2003. Was terminated when his position was made redundant on 1 July 2003.

Claimed he should have been given recognition of his external qualifications Claimed he should have been given recognition of his external qualifications as this affected his remuneration.as this affected his remuneration.

Did not receive skills recognition, consequently he had been discriminated Did not receive skills recognition, consequently he had been discriminated against or treated in some unequal manner compared to other employees.against or treated in some unequal manner compared to other employees.

Did not follow the grievance procedure. Did not follow the grievance procedure.

Litigated his matter out of time. Litigated his matter out of time.

Matter was dismissed along with his application for indemnity costs.Matter was dismissed along with his application for indemnity costs.

Check ListsCheck Lists

Review Folder MaterialReview Folder Material

StepsSteps

Questions & Questions & Summing UpSumming Up