HR Disputes: rights, wrongs and where to go for help!
Working as a small business and collaborating with other businesses for so many years, means we know the detrimental effects of a poorly handled HR dispute. We wanted to share some of the (official) “rights and wrongs” of HR that have surfaced since the recent Channel 7 incident, and advise where you can go for third party mediation and dispute resolution.
RIGHTS AND WRONGS
Know your rights:
- As soon as an issue arises at work, get advice from an expert and familiarise yourself with your rights – regardless if you are the complainant, respondent or employer.
Obligations of the employer when a complaint is made:
- Your employer should take the complaint seriously; they have an obligation to investigate any formal complaint.
- Duty of care, and OH&S regulations that mean they must ensure you are working in a safe and healthy environment.
- Under WHS Legislation, an employer is required to assess risks and take measures to mitigate hazards.
- If they do not follow up appropriately, then you can contact an industry-related union for assistance, or you can contact Fair Work Australia or a similar organisation (see our list below!). You can also seek legal representation.
Recording conversations and meetings with HR and management:
- The law regarding recording conversations depends on what state you live in.
- In Victoria, you are legally allowed to record a conversation in which you are a party. It is a breach of the Surveillance Devices Act to record a conversation if you are not part of that conversation.
- Just because you record a meeting or conversation, doesn’t mean you can use that recording.
Your rights when a complaint is made against you:
- You should be given the opportunity to respond to the complaint.
- You should be notified 24 hours in advance of any meeting called to address the complaint, with the nature and agenda of the meeting.
- You have the right to have a support person or representative from a union present at the meeting.
- Workplace contracts and policies will usually state that employers can monitor employee’ use of work computers, including emails.
- If you are operating on the employers system, the employer will have unrestrained access to your work emails.
- It could be considered unlawful under the Fair Work Act if your personal emails and text messages are used against you following a complaint.
- They are not required to give you notice of when they are looking at your emails (and it would defeat the purpose if they gave you a heads up).
Fair Work Australia:
Fair Work provides a guide designed to help employers and employees work through their own workplace disputes.
Step one in any dispute is to know the law. Fair Work outlines that most workplace disputes begin because one party doesn’t know the law. The other biggest cause is a breakdown in communication.
If the tools outlined in the guide don’t have the desired outcome, Fair Work can step in and help resolve the dispute. However, Fair Work still encourages issues to be worked out between the parties involved before making a formal request for help from Fair Work Australia, even if the employee has left the employer.
More information from Fair Work available here.
Victorian Equal Opportunity and Human Rights Commission:
They can provide impartial, flexible and free dispute resolution process to help people resolve discrimination, sexual harassment and racial or religious vilification complaints.
The Victorian Equal Opportunity and Human Rights Commission uses a process called conciliation, which is based on the complainant and respondent talk to one another to reach an agreement about resolving the complaint.
Agreed outcomes could include a private or public apology, financial compensation, an agreement to stop or change behaviour or an agreement to change policies to prevent the behaviour.
More information from the Human Rights Commission available here.
Complaints about breaches of the Charter of Human Rights and Responsibilities can be made to the Victorian Ombudsman.
Get in touch with us:
03 9851 7999 | firstname.lastname@example.org