Managing workplace disputes

As an employer, what should you do when staff are in conflict with each other at work? It’s a hard situation to handle at the best of times.

If your staff members fall into conflict, sometimes the situation escalates to a complaint. Perhaps it’s due to an incident or personality clash. Or maybe it started outside the workplace and became an internal issue due to unresolved hurt feelings.

Knowing what to do and understanding your obligations can significantly impact how effectively you manage the dispute. Any intervention must be fair, transparent and expeditious, with a view to resolving the issues rather than making matters worse.

Employer duties when there’s workplace conflict

When faced with a conflict, as an employer, you must take steps to:

1. Minimise the disruption to your workplace
2. Fairly investigate all complaints and cases
3. Manage inappropriate workplace behaviours 

It will help to resolve the dispute and restore a harmonious workplace while reducing any risk to workers’ health and safety.

Why it’s important to take complaints seriously 

If your staff members are involved in a workplace dispute, you should:

• Take all complaints seriously
• Act quickly to investigate
• Carefully consider what steps you need to take before, during and after the investigation
• Follow the checklist to ensure that you cover important legal requirements when investigating 

To you, a complaint may seem trivial or unrelated to the workplace. But to the person who has complained (the complainant), it’s a much bigger problem. They’re so affected by the issue that they’ve spoken up. It means that you should consider intervening, especially if the issue impacts their work performance, makes them feel unsafe or unwell at work or causes disruption to others 

While there’s no universal approach to managing workplace conflicts, a good starting point is getting advice from a workplace specialist to ensure you’re on the right track. The steps outlined below are also generally helpful and, if followed correctly, should see you through the process while minimising disruption.

Before the investigation

Before you start investigating, think about the following issues:

Who is implicated in the complaint?

If your human resources team or a manager has a potential conflict of interest, they can’t participate in the investigation. 

Is the issue an interpersonal dispute?

If you’re dealing with a personality conflict, consider whether mediation or a grievance procedure is appropriate.

Is the issue about workplace rules or practices?

If the complaint concerns a workplace rule or practice, consider whether it needs changing or enforcement.

Is the issue relevant to the workplace?

Consider whether there’s a sufficient connection with the workplace and whether the issue raises concerns about out-of-hours conduct. 

Is the complaint frivolous?

For example, is it trivial, far-fetched or otherwise not worthy of serious attention? If so, you may not be obliged to investigate.

Is the complaint vexatious?

For example, is it without merit and only designed to inconvenience or annoy another person or you as the employer? If so, you may not be obliged to investigate. However, you must remember that without an investigation, it is difficult to know whether a complaint is vexatious. 

How old is the complaint?

If the complaint is older than six months, consider how long you’ve known about it and whether the delay in your investigation may cause any issues. Also, if the complaint is minor, consider whether it’s necessary to investigate.  

Is there a risk of widespread or repeated conduct?

Even a trivial issue, such as the theft of a $1 item, could have broader implications if the conduct isn’t addressed, so consider whether the current circumstances pose this risk.

Is there a risk to your organisation’s brand and reputation?

For example, will there be negative publicity that harms your organisation if there are criminal charges due to the conduct? If so, consider how to manage these issues and whether you need external support, for example, from a public relations consultant.

Is there a broader public interest?

Consider whether there is a risk to public safety, as this may determine whether you investigate and how you approach the investigation.

Have there been repeated complaints about the same person or the same type of conduct?

Patterns of behaviour may indicate systemic problems, so you’ll need to know the issue’s history when determining how to investigate.

Deciding to investigate 

If you decide to investigate the issue, there are some essential steps to ensure the investigation is as effective as possible. Tick off each item in this checklist as you consider it in your preparation.  

Planning

◻ Make an Investigation plan before you start so you’re clear on what needs to happen 

◻ Identify key witnesses

◻  Outline the objective of the investigation

◻  If termination of employment is possible, seek legal advice, or be prepared to do so. Ensure you put the allegations to the worker in writing.

Action

◻  Investigate as soon as possible 

Communication 

◻  For written communications with the worker, ensure careful drafting to reduce the risk of any suggestion that you have pre-determined the outcome

Process

◻  Observe proper processes, including any requirements in your workplace policies and procedures

◻ Observe the rules of natural justice (fairness)

◻ Give the complainant a chance to have input  

◻ Give the alleged perpetrator a chance to have input  

◻ Rely on the best sources for information, for example, witnesses who saw the incident, rather than hearsay or innuendo 

◻  If an interviewee requests a support person, clarify their role with the interviewee

◻  Encourage both complainant and alleged perpetrator the opportunity to have a support person during the investigation (but you don’t have to find them one)

Interview 

◻  Set up interviews with the complainant and any witnesses 

◻  Keep written records of the interviews, and ask each interviewee to read and sign their respective records of interviews

◻  Consider asking a second person to act as a note-taker during the interviews

◻  If an interviewee raises any counter-allegations, consider and address them as necessary

Confidentiality 

◻  Maintain confidentiality during and after the investigation

Evidence 

◻  Be aware of what constitutes proper evidence

◻  Be aware of the dangers of inadmissible evidence 

◻  Examine any physical objects that may be part of the complaint, for example, stolen items

◻  Keep any documents and electronic records intact and in a safe place

Records

◻  In addition to interview notes, keep detailed notes of other aspects of your investigation and decision-making

Privacy 

◻  Consider whether you have complied with Privacy Act requirements for collecting personal information   

◻  Consider any other laws that prohibit the use of information, for example, in the Return to Work Act

Things to remember

It’s important to remember that some aspects of an investigation are critical to its success. These elements are the cornerstones of all workplace investigations and must be treated with care. 

Confidentiality

When you advise your employees about the outcome of your investigation, remember to seek legal advice about how to convey the message with fairness. Avoid making promises about anonymity because you may not be able to do so.  

Conflict of interest

Remember that if the complaint is about you, you cannot be the investigator, and you should avoid direct involvement in the investigation. Similarly, if the complaint is about one of your managers, that manager can’t act as an investigator. 

Client legal privilege

In some circumstances, you may need to seek legal advice about client legal privilege. In particular, legal advice is a good idea if the allegations are proven and termination of employment is possible.  

Disciplinary action

If an employee refuses to cooperate or breaches your direction about maintaining confidentiality, you may need to take disciplinary action. Again, seeking legal advice to discuss this possibility is a good idea.  

In a nutshell

Managing workplace disputes is often challenging and complex. The investigation’s success often depends on the ability of the manager to navigate legal requirements. So seeking legal advice of an experienced workplace lawyer as soon as possible can have a significant impact. 

Jodie Bradbrook is an Adelaide-based workplace and employment lawyer with additional expertise in workplace health and safety and workers compensation claims. Through her firm Bradbrook Lawyers she represents clients from various industries, including aged care, disability, and corporate services.