12 May 2015
Erin Lynch, Senior Associate and Michael Starkey, Graduate Associate
…Carl is never happy, and everybody knows it, especially Mavis. He spends much of his time complaining – not just to you, but to his colleagues. This not only disrupts his productivity, but has a damaging effect on morale throughout the workplace. Management has decided that Carl’s conduct can no longer be ignored.
Employers should always take complaints seriously in the first instance and err on the side of caution. This is important not just from a legal perspective, but also from a cultural perspective. Workplaces in which communication is encouraged and employees feel management takes their concerns seriously are happier and more productive. However, there are always employees who just like to complain. The question is how do you deal with an employee who always cries wolf?
In the world of complaints, the possibilities are endless. “The tap in the bathroom is leaking”. “My manager is very rude”. “Travis made a sexist joke in the lift”. Employers need to be aware that there are a number of avenues through which employees can pursue complaints beyond raising them in the workplace. For example, employees may pursue a claim in the Australian Human Rights Commission under anti-discrimination legislation (such as the Sex Discrimination Act 1984 (Cth)).
Complaints under the Fair Work Act
One way in which serial complainants are increasingly taking action beyond the workplace is with a general protections claim under the Fair Work Act 2009 (Cth) (the “FW Act”). The general protections regime provides all employees with a workplace right to make a complaint in relation to their employment, and to pursue a claim if adverse action is taken in response to exercising that right.1 The adverse action might be the employer dismissing the employee or altering their position of employment because they have exercised their workplace right to make a complaint.2
Because the FW Act gives employees a workplace right to make certain complaints, employers must always tread carefully. This does not mean, however, that an employer must simply withstand a serial complainant. Rather, the question becomes whether an employee’s complaint, or series of complaints, is one that is legitimate or a behavioural issue that needs to be addressed.
A limited number of cases have considered what constitutes a legitimate complaint for the purposes of the general protections regime. However, it has been held in a number of instances that there is a distinction to be made between complaints pertaining to the employment relationship and complaints about valid exercises of managerial prerogative.3
Matters pertaining to the employment relationship, which can form the basis of a protected complaint, include the terms and conditions of employment afforded an employee by their contract, a relevant award or enterprise agreement, or legislation including the FW Act, work, health and safety legislation and anti-discrimination legislation. Complaints about such matters might be about, for example, bullying or harassment in the workplace.
On the other hand, complaints merely reflective of an employee’s insubordinate and rebellious attitude, or indicative of an employee’s poor attitude to reasonable management processes, may amount to behavioural issues which do not enliven the general protections regime. Employers are not obliged to continue to deal with illegitimate complaints if they arise from an employer-employee relationship that has deteriorated so as to become unworkable.
There remains some uncertainty around whether an employee’s complaint must be “genuine” or made “in good faith”, with guidance so far developing on a case-by-case basis. In a recent decision, the Full Court of the Federal Court held that the trial judge had erred in incorporating this requirement into the FW Act, saying “considerable care needs to be exercised before implying into section 341 any constraint that would inhibit an employee’s ability to freely exercise the important statutory right to make a ‘complaint.’” Rather, the question is how to best balance the legitimate interests of employers and employees when determining whether an employee had a “right” to make the complaint they did.4
What does this mean for employers?
Having proper grievance policies and training employees on their rights and responsibilities under them will help employers determine the nature of an employee’s complaint and what steps need to be taken in relation to it.
If the complaint appears to be one about a matter pertaining to the employment relationship, it is best practice to work with the employee, to the extent that his or her requests are reasonable and in accordance with the organisation’s grievance procedure, to resolve it.
On the other hand, grievance policies should specify the consequences for employees who make vexatious complaints, for example, persistent complaints about reasonable exercises of managerial prerogative. Employees should be made aware that such complaints may result in disciplinary action ranging from counselling to termination.
While a reactive approach may help resolve complaints as they come, it is only by adopting a proactive approach that employers can prevent complaining from becoming a cultural norm in the workplace. Avoiding a “Carl strikes back” scenario will mean jumping a number of common hurdles.
One of the biggest problems is overcoming a common reservation among staff to deal with those they view as “difficult”. Many organisations will have experienced circumstances where even those individuals tasked with the responsibility of identifying potential serial complainants will go out of their way to avoid doing so.
Another challenge is the growing number of serial complainants taking to social media to air their grievances. In increasing numbers, complainants are turning to the internet to vilify and defame the people and organisations they work with, and in the process are causing significant reputational and psychological harm to their victims.
One of the best ways to ensure that everyone in the organisation is on the same page about appropriate workplace behaviour and culture is to engage in training. This is as much about addressing the behaviour of those who deal with complaints as those who make them. Training all staff on the basics – the difference between bullying and a reasonable management action, what can and can’t be posted on Facebook, the person to go to and procedure to follow if they have a grievance – will deliver noticeable improvements in workplace culture and help keep Carls at bay.
Managing Serial Complainants: Dos and Don’ts
- Be prepared: have a proper grievance policy in place. Make sure staff and management know how to make and deal with complaints in accordance with it.
- Check yourself: be open and communicative so staff feel their complaints are taken seriously. This does not mean tolerating unwarranted complaints, but being consistent in your treatment of all complaints based on their substance.
- Act early, act often: don’t let unwarranted complaints affect workplace morale and productivity. Use your eyes and ears on the floor to identify serial complainants. Meet with them to address their concerns and make them aware of what is and is not acceptable workplace behaviour.
- If it’s broke, fix it: be careful not to judge complainants off the bat. Acting on legitimate complaints quickly will benefit workplace culture, limit legal liability and earn you the respect of your staff.
- Substance over spin: it is the substance of a complaint that should dictate the level of resources dedicated to it, not a complainant’s demands or behaviour.
What you can look forward to
- Happier staff: removing the cloud of serial complaints will leave the workpalce filled with more positive individuals.
- Cultural change: the sum is more than the whole of its parts. Happy workplaces are self-perpetuating.
- Higher productivity: a happy workplace is a more focused, more motivated and more productive workplace.
- A better reputation: happy employees are great spokespeople; serial complainants are not. Deal with them quickly to improve your public image.
- Less liability: an organisation which deals with legitimate complaints properly and serial complaints effectively will be less exposed to claims under the FW Act and other legislation.
- Fair Work Act 2009 (Cth) ss 340, 341.
- See Fair Work Act 2009 (Cth) s, 342.
- See, for example, Harrison v In Control Pty Ltd  FMCA 149.
- Shea v Energy Australia Services Pty Ltd  FCAFC 167.