President speeches: How to Proactively Manage Workplace Grievances

Catholic Independent Schools Employment Relations Committee Conference

Novotel, Brighton Beach

Sydney 21 – 22 August 2008

‘How to Proactively Manage Workplace Grievances’

John von Doussa

President of the Human Rights and Equal Opportunity Commission

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I would like to begin by acknowledging the Gadigal People of the Eora Nation, the traditional owners of the land on which we meet.

1. Introduction

Ladies and Gentlemen I am very pleased to be at the Catholic Independent Schools Employment Relations Committee Conference.



Occasions such as this one allow me, as President of the Australian Human Rights and Equal Opportunity Commission, to share with a very influential group my thoughts about how we can all better manage the complexity and diversity of today’s working environments.

With the flocks of young people gathering in Sydney’s streets for World Youth Day in July one couldn’t help but notice the enormous diversity of the Catholic Church, with pilgrims from far and wide coming together to celebrate and learn about their faith. This was a very strong indication of the extraordinary value system that governs the Catholic faith. It also highlighted the important role that Catholic schools can play, as employers and educators, in implementing the norms of equality and non-discrimination in an increasingly multicultural and diverse Australian society.

Australian working environments are clearly becoming more diverse with employees of different genders, ages, races, cultures, and different forms of disability working side by side. While such diversity can, and should, be an organisation’s greatest strength, diversity can also increase the potential for workplace conflict. 

It is important to state at the outset that workplace conflict is not inherently negative. Indeed conflict is a natural occurrence when people work together and it has the potential to be a positive force which can promote new ideas, strengthen personal relationships, stimulate individual growth and facilitate more effective solutions to problems.1

The impact of conflict in a workplace depends largely on how it is managed. When workplace conflict is not proactively managed and associated grievances are not resolved, there can be an escalation of behaviours which can result in stress, anger or anxiety for all who are involved. Unresolved smaller conflicts may snowball into larger conflicts, adversely affecting productivity, staff and student satisfaction and possibly interfering with whole workplaces.

A survey conducted in Canada in 2002 showed that 23.7% of respondents had taken sick leave as a result of unresolved conflict in the workplace.2 Other research from Britain demonstrated that stress related absenteeism accounts for 1.3 billion pounds annually, and from the US the cost is $500 per employee for unscheduled absences.3 Although not all stress related absences are related to conflict, there is likely to be a high correlation between the two. I haven’t been able to find any statistics on the impact conflict on Australian workforces, but I can’t imagine it would substantially differ from the UK or the US.

Further, workplace conflict that is not resolved can lead to formal complaints to external bodies such as the Human Rights and Equal Opportunity Commission (or the Australian Human Rights Commission, as we now refer to ourselves) which may sometimes result in employers facing action before courts or tribunals.



It is therefore important that all workplaces are equipped to proactively manage conflict and adequately address workplace grievances when they arise.  

As President of the Australian Human Rights Commission I am going to focus my speech today on the management of particular types of workplace conflict that fall into our jurisdiction, namely, those that relate to issues of discrimination and harassment. Of course the general principles that I will refer to are also broadly applicable to other types of conflict.

It is not unusual for workplace conflict to arise from situations in which employees feel that they are being treated unfairly by co-workers or by their employer generally. In some cases, the alleged unfair treatment may potentially be unlawful under anti-discrimination law.

So I begin by providing a brief overview of unlawful discrimination in the employment context and outline the circumstances in which employers may be found liable for discrimination. I will also briefly discuss the Australian Human Rights Commission’s role and approach to handling complaints of workplace discrimination. I will then move on to share some ideas regarding how employers can seek to avoid liability for unlawful discrimination by putting measures in place to both effectively prevent and respond to inappropriate workplace behaviour.

2. Understanding unlawful discrimination

2.1 What type of discrimination is prohibited?

Ladies and Gentlemen, it probably comes as no surprise to you to find out that employment falls within one of the many areas of public life where discrimination is unlawful. Discrimination is prohibited by federal unlawful discrimination laws in all stages of employment, including in:4

• advertising for positions;5
• arranging interviews;
• selecting the successful candidate;
• the terms upon which employment is offered;
• the conditions of employment;
• access to promotions, training and benefits;
• dismissal; and
• subjecting an employee to ‘any other detriment’.

The grounds upon which discrimination is made unlawful under the federal regime6 are:

• race, colour, descent7 or national or ethnic origin under the Racial Discrimination Act 1975 (the RDA);8
• sex, martial status, pregnancy or potential pregnancy and family responsibilities, in limited circumstances9 under the Sex Discrimination Act 1984 (the SDA);
• disability under the Disability Discrimination Act 1992 (the DDA);10 and
• age under the Age Discrimination Act 2004 (the ADA).

There are also protective laws proscribing discrimination in employment on similar grounds in each of the States, and an employee can chose whether to access the Federal or State systems.

Employers also have legal obligations under the International Labour Organisation Discrimination (Employment and Occupation) Convention 1958 ("ILO Convention 111")11  which is scheduled to the Human Rights and Equal Opportunity Commission Act 1986. This convention prohibits discrimination in employment and occupation on additional grounds to those under unlawful discrimination legislation. These additional grounds include religion, political opinion, trade union activity; criminal record; medical record and sexual preference.

2.2 How is unlawful discrimination defined?

In general terms, the unlawful discrimination Acts define discrimination as being either direct or indirect, although those terms are not used in all of the Acts.

Direct discrimination is sometimes also referred to as ‘disparate treatment’ discrimination. The concept of direct discrimination is premised on the broad assumption that everyone should receive equal treatment, treatment that is sometimes referred to as ‘formal equality’.

Direct discrimination occurs when a person is treated less favourably on the basis of an attribute (such as sex, race, disability or age) when compared with how a person without the attribute would be treated in the same or similar circumstances.12 An example of what is commonly understood as direct discrimination would be where an employer refuses to hire a person or terminates their employment because of their age, race, disability or sex.

Indirect discrimination is sometimes also referred to as ‘disparate impact’ discrimination. Whereas direct discrimination principles are intended to achieve formal equality, indirect discrimination principles are intended to achieve what is referred to as ‘substantive equality’ in situations where to treat everyone equally actually disadvantages people who have a particular characteristic.

In general terms, indirect discrimination occurs where there is a requirement or condition that applies generally to everyone, but has the effect of disadvantaging a particular group because they cannot comply with it, or can only do so with difficulty, and the condition or requirement is unreasonable in all of the circumstances.13

An example of what may be indirect discrimination is where an employer requires a woman returning from maternity leave to work full-time and this is not reasonable in the circumstances. Such a situation was considered by the court in the case of Hickie v Hunt.14In this case Ms Hickie’s employer required that she return to full-time work after maternity leave if she wished to maintain her position as a partner in the law firm. The court determined that the employer’s conduct constituted sex discrimination.  The condition imposed on Ms Hickie was likely to disadvantage women, not men, and in the circumstances of the particular workplace, to allow flexibility in the working conditions, including part-time work, would not impose an unreasonable burden on the employer.

2.3 Other forms of prohibited behaviour

Aside from direct and indirect discrimination, the Sex Discrimination Act also specifically prohibits harassment in the workplace by employers, fellow employees and other ‘workplace participants’ including commission agents and contract workers.15 Sexual harassment is defined, in general terms, as unwelcome sexual conduct that a reasonable person would anticipate would offend, humiliate or intimidate the person harassed.16

A number of discrimination cases have also considered what has been called a ‘hostile work environment’ in the context the Sex Discrimination Act. The cases illustrate that the cumulative impact of behaviour and incidents in the workplace in which women are treated differently, or made to feel uncomfortable, can amount to discrimination in employment. Significantly, conduct which, of itself, might not be discriminatory may contribute to a work environment that is detrimental to women and give rise to liability for discrimination.

The case of Hill v Water Resources Commission17, although a case decided more than 20 years ago, provides a good example of a ‘hostile work environment’. Here the complainant complained of ‘repeated acts of gender-based harassment at the workplace where she was part of a predominantly male workforce.’18 The NSW Equal Opportunity Tribunal commented that this was ‘perhaps better described as ‘sexist’ harassment, than sexual harassment’,19 although it clearly involved both – the receipt of offensive, sex-oriented material over a long period of time as well as unwelcome comments and a range of conduct found to be calculated to make female employees feel uncomfortable and unwelcome. Although, some of the conduct would not, of itself, be expected to give rise to a successful claim of sex discrimination, the conduct nevertheless formed part of a ‘hostile work environment’ that was ‘sufficiently pervasive to affect adversely the terms and conditions of employment’.20 The respondent was ordered to pay damages of approximately $35,000.

It is also important for employers to be aware that anti-discrimination law contains victimisation provisions.21 ‘Victimisation’ in this context refers to subjecting a person to a disadvantage by reason of them doing such things as: articulating their rights in the law; making a complaint of discrimination to the Human Rights Commission; providing information in connection with the complaint; or attending a conference in relation to the complaint (or proposing to do any of those things). This may mean that if a person lodged an internal grievance asserting a breach of the law or lodged a complaint with the Commission about a workplace situation and was then subjected to some form of detriment in the workplace, they could also bring an allegation of victimisation to the Commission.

2.4 Situations in which discrimination may not be unlawful

The law stipulates that in some situations discrimination in employment will not be unlawful. For example, under the Disability Discrimination Act, it will not be unlawful for an employer to refuse to employ or dismiss a person because of their disability if the employer is able to establish that:

• the person is unable to carry out the inherent requirements of the particular employment22 or;
• in order for the person to carry out the inherent requirements, they require particular services or facilities, the provision of which would cause unjustifiable hardship for the employer.23

A similar defence to relation to discrimination in employment is included in the Age Discrimination Act.24 Additionally, the ILO Convention 111, which deals with discrimination in employment on grounds such as criminal record, religion and sexual preference, provides that it will not be discrimination where the distinction, exclusion or preference is based on the inherent requirements of the particular job.25

The federal Sex Discrimination Act alsocontains certain exemptions in relation to employment at educational institutions established for religious purposes, where the acts taken are in accordance with the doctrines, beliefs or teachings of a particular religion. This will apply if the person discriminates in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion.26 Similar exemptions for religious bodies are also found in the ILO Convention 111.

It is noted however that the exemptions in relation to religion in the ILO Convention 111 and the Sex Discrimination Act are narrow, and it remains true that as employers and service-providers, Catholic schools have basically the same legal obligations as any other organisation to provide a work environment that is discrimination free.

2.5 Responsibility for employee behaviour

Under federal anti-discrimination law, employers will be vicariously liable for the discriminatory acts of their employees (including harassment) where the alleged discrimination and harassment occurs in connection with the person's employment. This means employers may be held vicariously liable for the unlawful actions of employees occurring both within the usual work environment and at employer-sponsored functions such as seminars, conferences, work functions, Christmas parties, business or field trips. Employers will be found liable unless they can demonstrate that they ‘took all reasonable steps’ to prevent the employee doing of the act (under the Racial Discrimination Act27 and Sex Discrimination Act28) or ‘took reasonable precautions and exercised due diligence to avoid the conduct’ (under the Disability Discrimination Act29 and Age Discrimination Act30). Note the reversal of the usual onus of proof: here the employer must prove that reasonable precautions were taken.

The ‘reasonable precautions and due diligence’ test applying under the Disability Discrimination Act was considered by Raphael FM in Vance v State Rail Authority31 where his Honour stated:

Case law in this area emphasises the importance of implementing effective education programs to limit discriminatory conduct by employees and the necessity of such programs for employers to avoid being held vicarious liable for the acts of their employees… the test to be applied is an objective one based upon evidence provided by the employer as to the steps it took to ensure its employees were made aware of what constituted discriminatory conduct, that it was not condoned and that effective procedures existed for ensuring that so far as possible it did not occur.32

Raphael FM further held that the Act requires proactive and preventative steps to be taken. Perfection is not the requisite level – only reasonableness.33 Thus there is a legal obligation on employers to take a proactive approach to preventing discrimination.

3. The role of the Australian Human Rights Commission in the resolution of grievances relating to discrimination

An employee who feels they have been discriminated against in breach of the federal anti-discrimination law is entitled to lodge a complaint with the Commission.  Given the wide scope of the federal anti-discrimination Acts, as well as the ILO Convention 111 provisions to cover discrimination in employment, it comes as no surprise that much of the Commission’s work revolves around addressing grievances relating to discrimination in the field of employment. For instance, approximately 60 percent of complaints made to the Commission in the 2007-08 reporting year related to alleged discrimination in employment.34

As President of the Australian Human Rights Commission, I have responsibility with the aid of skilled staff to investigate and to attempt to resolve such complaints by conciliation. Where a complaint of unlawful race, sex, disability or age discrimination cannot be resolved or where I am of the opinion that inquiry into the complaint should not be continued, a complaint is terminated. After a complaint is terminated, the complainant may apply to have the allegations heard and determined by the Federal Court of Australia or the Federal Magistrates Court of Australia.

The resolution of complaints is a very important part of the work of the Australian Human Rights Commission. Like other forms of Alternative Dispute Resolution, or ADR as it is known, the Commission’s conciliation process is recognised as a valuable way to resolve disputes in that it is more flexible, accessible and cost efficient than litigation. The conciliation process is also confidential in that what is said and done in conciliation cannot be provided to the courts. Importantly, conciliation provides a unique opportunity for those involved in a dispute to talk to each other, to understand each others’ perspective and to find mutually acceptable terms of resolution.  

Conciliation can be undertaken at different stages of the complaint process, including very early in the process if the Commission and the parties are of the view that this may be beneficial, such as where a complaint raises issues relating to ongoing employment. The process can also take a number of forms, including face-to-face meetings between the parties, shuttle negotiation, teleconferences and shuttle telephone negotiations.

The Commission’s conciliation process is very successful. In the 2007 – 08 reporting year, 74 percent of complaints where conciliation was attempted were successfully resolved.35 Past research conducted by the Commission also indicates high party satisfaction with outcomes of conciliation. For example, in a research exercise conducted with 231 complainants and 228 respondents, 82 percent reported that they were satisfied with the conciliation outcome and of this group, 42 percent reported that they were ‘highly satisfied’.36 

4. Preventing and responding to workplace grievances

While the Commission’s conciliation process is important, and offers a valuable alternative to litigation, in the ideal situation workplace grievances would be resolved at an earlier stage.  There are significant benefits for all parties when grievances about workplace discrimination are adequately addressed at the internal level, through proactive management policies and internal complaint mechanisms.  These benefits include;

• increased satisfaction of workers and retainment of staff;
• avoidance of costs associated with staff leave due to dissatisfaction and workplace stress;
• avoidance of negative publicity and costs related to external complaints;
• avoidance of legal liability and associated costs; and
• not least, a reduction of my workload at the Commission!

So how can employers proactively manage discrimination arising in the work setting? There are, I believe, two principle ways in which this can be achieved.

The first is through prevention based strategies, which aim to develop a workplace culture that thrives on tolerance and diversity and reinforces the practice of respectful behaviour. The second is through grievance management systems, designed to ensure a speedy and effective resolution of workplace discrimination.

4.1 Prevention based strategies

Key to the prevention of workplace discrimination is the development of a work environment that is respectful of diversity and a workplace in which there are clear standards of appropriate behaviour.  

There is a range of useful information available about ‘diversity management’ and ‘productive diversity’ so I will not spend too much time discussing this today. In essence, diversity management emphasises the importance of valuing differences and maximising the benefits of workplace diversity in a planned way. This can occur through the implementation of policies and work practices which recognise and support the diverse needs of staff, and through staff training which encourages an appreciation of diversity and provides skills to address potential misunderstandings and miscommunication.

In terms of setting standards for workplace behaviour, our Commission’s publication ‘Good Practice, Good Business: Eliminating Discrimination and Harassment in the Workplace’ provides some useful practical guidance on the development and implementation of anti-discrimination and anti-harassment policies.37 It is important that all such policies are developed in consultation with staff, employer organisations, unions, industry and other relevant experts.  It is equally important to periodically review the policy to ensure it is operating effectively and contains up-to-date information.

Given the frequent use of computers in the workplace, any anti-discrimination and anti-harassment policy should contain prohibitions on inappropriate use of computer technology, such as e-mail, screen savers and the Internet. It should also make clear the consequences of non-compliance with that policy. 

It is critical to emphasise that anti-discrimination jurisprudence makes clear that the existence of a written policy on its own is insufficient.38 A policy that is not implemented through communication, education and enforcement will be of little or no use in ensuring appropriate workplace behaviour and discharging an employer’s vicarious liability. An effective means of ensuring that the policy is promoted on an ongoing basis is to periodically put a copy of a policy into pay slips. Policies can also be promoted by e-mailing copies to employees, putting a copy on the company Intranet, displaying the policy on notice boards and including it in personnel manuals. Employers could also provide a copy of the policy to new staff as a standard part of induction and also require all new staff to sign a copy of the policy acknowledging that they received and understood it. It is important that employers have strategies in place to ensure that an employee’s literacy level, English language ability and/or disability is not a barrier to accessing and understanding the anti-discrimination policy.

Managers have an important role to play in communicating and enforcing anti-discrimination policies. One of the criteria for management positions could therefore require that the managers have a demonstrated understanding of, and ability to deal with, discrimination and harassment as part of their overall responsibility for human resources.

4.2 Grievance management systems

Aside from prevention-based strategies, employers should also establish an internal grievance management system whereby issues of discrimination and harassment can be raised and quickly attended to. On a practical level, a timely and appropriate response to a grievance concerning discrimination is likely to avoid potential further unlawful acts and may minimise the harm caused by way of distress or humiliation. It also prevents grievances from escalating into litigation or external complaints. Further, in the longer term, an effective internal dispute system benefits the organisation by instilling a philosophy of conciliatory problem-solving and reinforcing a climate of mutual respect within the workplace.39



Ladies and Gentlemen, there is no one 'right' internal grievance procedure, which means that employers have the flexibility to design a system that suits their organisation's size, structure and resources.  There are, however, some key principles that should be followed in all grievance management systems. For example, grievance procedures should:   

• be clearly documented and accessible to all employees;
• guarantee timeliness and confidentiality;
• be administered by trained personnel;
• offer both informal and formal options for proceeding;
• provide clear guidance on investigation procedures and record keeping;
• guarantee that no employee will be victimised or disadvantaged by the organisation for making a complaint; and
• be regularly reviewed for effectiveness.

There are benefits in providing informal avenues for employees to raise workplace grievances. Informal processes allow a person who may not wish to pursue a formal complaint to bring an issue forward for advice or assistance. Early informal intervention can prevent a matter from escalating and help to maintain positive working relationships. Additionally, informal processes provide opportunities for employers to educate and remind employees about expected workplace behaviour.

There are different ways in which issues raised as part of an informal process can proceed. For instance, the person bringing the issue forward may wish to deal with the matter themselves after some advice and support; alternatively they may request that a third person such as a supervisor or Contact Officer help them to discuss and resolve the problem with the other individual(s); or the third person may take an intermediary role and convey messages between those involved. Informal processes generally do not involve investigation or determination of facts, but rather, focus on the resolution of the presenting problem. The Human Rights Commission publication ‘A guide to the informal resolution of complaints by managers or supervisors’40 provides some useful guidance for managers and supervisors to assist with the informal resolution of grievances.

It is worth mentioning that an employee should not be required to exhaust informal attempts at resolution before formal action commences. Employees have the right to formalise their grievance and also to approach an external agency, such as the Human Rights Commission, at any stage.

Organisations should make clear in their policies that certain allegations must be dealt with as a formal grievance, due to the serious nature of the allegation under consideration. Formal procedures are usually appropriate where informal attempts at resolution have failed; the complaint involves serious issue; the complaint is against a more senior member of staff and formal procedures may help to ensure that the complainant is not victimised or disadvantaged; or the person alleging discrimination or harassment wishes to make a formal complaint from the outset.

Formal grievance procedures will usually stipulate that an investigation into the allegations is required. The Human Rights Commission has developed some basic information to assist with the investigation of complaints and this is available on the Commission’s website.41  If an investigation determines that there is insufficient evidence to determine whether or not discrimination or harassment has occurred, it would nevertheless be prudent for employers to remind those involved of expected standards of conduct; conduct further training and awareness-raising sessions for staff and to continue to monitor the situation closely.

Where a formal grievance is substantiated following an investigation, or the person the complaint is about does not dispute the allegations, the outcome of the process may be counselling or some other form of disciplinary action against this person. Action to redress any disadvantage that may have been suffered by the complainant, for example re-crediting any leave taken as a result of the discrimination or harassment, will also need to be considered. It is particularly important that employers ensure the outcome of a substantiated grievance does not disadvantage the person who was discriminated against or harassed.

Finally, in some cases, regardless of the outcome of an investigation, mediation or conciliation for the parties may be helpful, especially where those involved in the grievance will continue to work together. Where conciliation or mediation is conducted in the context of a workplace grievance, it is essential to ensure that the process is as fair as possible for all participants. It is therefore recommended that in any such resolution process:

• the person facilitating the process does not have a personal agenda in relation to the parties or the subject matter of the dispute and is perceived as ‘fair’ by the parties;
• the parties are consulted about their needs and concerns regarding the process;
• consideration is given to possible unfairness that may arise from differences between the parties in terms of gender, race, disability or workplace hierarchy; and
• arrangements are made for the parties to have support people or other support services where this is necessary to ensure substantive  fairness in the procedure.

The observations I have made here are not exhaustive. The Human Rights Commission website provides a range of materials for employers seeking to develop and implement an internal grievance procedure, including the provision of checklists and benchmarks. 

5. Conclusion

Ladies and Gentleman, all of us in this society deserve to enjoy a discrimination-free workplace and all of us would like to see an absolutely conflict-free workplace. However, as I stated earlier, conflict is sometimes unavoidable.  I hope my speech here today has contributed to your understanding of how certain types of workplace conflicts may be prevented and how grievances can be managed when they do arise.

I am happy to answer any questions you may have.

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Endnotes