The Grievance Procedure

 

Introduction

  My articles up to now, dealt predominantly with the employer initiating certain actions with the employee as the object or recipient. These actions are undertaken on the strength of the managerial authority vested in the employer. The employment relationship is however in its nature an interactive phenomenon, or a “two-way street”, if you will. Where the disciplinary policy and procedure, for instance, is a “downward” communicative process from management to employee, the interactive nature of the employment relationship calls also for an upward communicative process, from employee to management. Where such a communicative process exists in the workplace, it is generally called “the grievance procedure”. Admittedly, we do not find much mentioned in the statutes dealing with labour or employment law about the grievance procedure – in fact, I am personally not aware of any statutory provisions regarding the grievance procedure per se. I did pick up references to the grievance procedure in the Code of Good Practice on the Handling of Sexual Harassment Cases, which forms part of the Codes of Good Practice annexed to the Labour Relations Act (LRA). These Codes of Good Practice serve as guidelines to assist the employer in dealing comprehensively and fairly with the subject matters covered in these codes. References to grievance procedures do appear in case law though, especially in regard to constructive dismissal disputes and sexual harassment cases. In this article, I will conceptually deal with the grievance procedure as an upward communicative process from employee to employer, thereby creating a common frame of reference in this regard. I will then follow up this article with an article dealing with a very topical workplace occurrence, where the grievance procedure has a role to play. This workplace occurrence I am referring to is Sexual Harassment – the topic of the article following on this one.  

What is the objective of the grievance procedure?

  Apart from being an upward communicative process from employee to management, the grievance procedure should afford to the aggrieved employee a non-threatening opportunity to bring his/her work-related unhappiness to the attention of managerial authority, which has the ability and resolve to pay the necessary attention to the grievance, with the intention to resolve it, if reasonably possible.  

What are the prerequisites of a proper grievance procedure?

  Many of these prerequisites can be derived from the objective of the grievance procedure in the former paragraph. Let us unpack it:

• A non-threatening opportunity – In the majority of cases the aggrieved employee is unhappy about an aspect of the employment situation which is controlled, decided or imposed by another person within the organisation. The opportunity afforded the aggrieved employee to raise the grievance should however be free from any threat or intimidating situation or experience.Where the grievance is about perceived threatening or intimidating behaviour displayed towards the employee concerned, it would be inappropriate to require the employee to raise the grievance in the presence of the person implicated by the grievance, let alone to raise the grievance before such person, with the understanding that the implicated person has to decide the validity of and remedy for the grievance. The person hearing the grievance must have an open mind regarding the grievance and must also reasonably be perceived to be open-minded. A specific provision of a proper grievance policy would be that no employee will be victimised or prejudiced for having raised a valid and genuine grievance.
• The grievance must be work-related – The employer has no jurisdiction to entertain grievances which has its origin outside of the working environment and which have no bearing on the working environment.
• The grievance statement must be clearThere are at least two important requirements related to the raising of a grievance, namely: (1) The disclosure of adequate information pertaining to the grievance to enable a proper assessment of the matter at hand. Complete information must at least be disclosed at the grievance meeting, while the initial grievance statement may be a mere synopsis or categorisation of the grievance. (2) An indication of what the aggrieved employee expects as a solution to the grievance.
• The person presiding at the grievance meeting must have the necessary authority to deal with the subject matter of the grievanceGiven the nature of the grievance and who are involved/implicated, management (or in some instances HR or ER/IR) will determine which manager will be best suited to deal with the grievance, possessing the required authority and resolve to address the intricacies of the grievance.
• The grievance process is distinct from a disciplinary process

It would be inappropriate to deal with the grievance in the grievance meeting as a trial of sorts. In a sense, the grievance meeting is a hearing, but not in the sense of a disciplinary hearing. The presiding officer will hear the version of the aggrieved employee in the proposed non-threatening circumstances, but no “witnesses” need to be called and cross-examined. That is why there is no need for the implicated person to be present when the grievance is raised and motivated. Naturally, the implicated person also has rights and in the process of deciding the validity of the grievance, the implicated person’s version must also be heard, but in a separate meeting where the aggrieved employee will not be present. Practically, the person hearing the grievance (presiding officer) will have an initial grievance meeting with the aggrieved employee and any representative which internal policy provides for (if representation is required by the aggrieved employee). The presiding officer will assume an inquisitorial role and by way of probing questions, obtain as much as possible relevant information from the aggrieved employee, inclusive of an indication of on what evidence the employee is relying. Documentary evidence may be submitted, but the employee only needs to disclose the names and contact particulars of persons who can substantiate or shed light on the subject matter of the grievance. Once the presiding officer is satisfied that he/she has been given adequate information in substantiation of the grievance, will the grievance meeting be adjourned. The presiding officer will then agree on a sufficient time frame with the employee within which he/she will verify the evidentiary material presented by the aggrieved employee, which will include interviewing the persons pointed out by the employee as having information regarding the subject matter of the grievance and/or being implicated. These interviews are not attended by the aggrieved employee or his/her representative. It is the prerogative of the presiding officer to have follow-up meetings with the aggrieved employee or any other person involved during the verification process, as may be necessary to eventually form a proper conclusion regarding the validity of the grievance and how the matter will be addressed. Once the presiding officer came to his/her conclusion, he/she will convene a report- back meeting with the aggrieved employee and the implicated party or parties. It is within the discretion of the presiding officer to have separate report-back meetings with the aggrieved employee and other persons involved, or to convene a joint meeting for this purpose, formally announcing whether or not the grievance is regarded valid and founded and what the remedial action / next steps will be. Important – The report-back meeting is strictly a one-way communication and no debate or argument about the outcome is to be allowed. The report-back will be with reasons and if the aggrieved employee is not happy with the outcome, he/she can escalate the grievance to the next stage if provision is made for a multi-stage grievance process, or refer a dispute to the CCMA to the extent that the subject matter of the grievance is such that a competent referral in this regard can result from it.

• Group grievancesIt may happen that more than one employee may have a common grievance, such as with a wage dispute, hence the internal grievance policy, preferably, should provide for a group grievance. Here HR or ER/IR in larger organisations normally plays a role in identifying a suitable manager or even a panel of suitable managers to preside at the grievance meeting. Where a panel is appointed, there must be clear rules regarding the composition of the panel, the obligations and functions of panellists and the way in which panel decisions will be taken. For instance, where a panel of three is appointed, it may be decided that one panellist will be the head of the panel, responsible for taking the ultimate decision, being assisted with advice by two assessors, who only have advisory powers and no decision-making powers. Alternatively, the three panellists may have equal decision-making powers, but either the majority decision of the panellists will prevail, or it will be mandatory that decisions are taken on consensus amongst all three panellists. It is however advisable to always ensure that an unequal number of panellists is appointed to avoid “hung” decisions where the majority decision is determinant. Process-wise, a similar process is followed with a group grievance. as with grievances involving a single employee. It is however not necessary to appoint a panel to hear a group grievance – the presiding authority may be a single manager. It all depends on the specific circumstances of the organisation concerned and the nature of the grievance. Important – It is crucial that the grievance policy provides that the group be represented by a spokesperson or preferably a maximum of two spokespersons, who will articulate the group’s grievance at the grievance meeting and take decisions on behalf of the group in accordance with a mandate received from the members of the group. It may be necessary to allow the spokesperson/s to liaise with the members of the group from time to time to refresh their mandate during the course of raising the grievance. It is not advised that management engage directly with a group of aggrieved employees.

   

Multiple stages of the grievance process

  Depending on the size of the organisation and the depth of its organisational structure, the grievance procedure may provide for multiple stages, progressively following on each other, whereby a grievance can be escalated when the outcome at a particular stage is not accepted by the aggrieved party. It is customary to provide for no more than 3 progressive stages in a given grievance process. Remember that the aggrieved party is in the proverbial “driver’s seat” of the grievance and has the sole prerogative to decide when a particular outcome is acceptable or not. It is not for management to decide that a particular outcome has to be accepted by the aggrieved party – management may, however, decide what a particular outcome is and may stick to that. With the escalation of a grievance from one stage to the next (always involving a more senior manager or managerial panel presiding), the person or panel presiding will obviously take note of what was decided by management at the former stage, but is not bound by it and will conduct its own research and verification to inform its own conclusion.  

Consequence management

  It should be a specific provision of the grievance policy that the outcome of a grievance may involve consequences for those implicated, as well as potentially for the aggrieved employee in certain circumstances. Where it is established, on at least a prima facie basis, during the grievance process that one or more of the implicated persons committed an offence giving rise to the grievance, appropriate disciplinary proceedings will (and must) be instituted against the perpetrators. The aggrieved party, however, has no say in what the outcome of such disciplinary proceedings should be – the aggrieved party will merely be informed at the report-back meeting that appropriate disciplinary proceedings will be instituted against the implicated persons. Obviously, where the implicated person or party is not an employee of the organisation (as may occur in respect of sexual harassment cases) consequence management will be instituted in a way considered appropriate in the circumstances. Where it is however established that the grievance is raised in a malicious way, with no factual basis, potentially unnecessarily tarnishing the reputation of another employee, appropriate disciplinary proceedings may (and should) be instituted against the “aggrieved” employee.  

Author’s explanatory note

  Notoriously, grievance processes are seldom trusted by employees. Partly, maybe because there is no statutory provision to fall back on compelling the employer to listen to an aggrieved employee’s grievance – it is up to the employer to decide when and how to lend an ear to the unhappy employee. Amongst caring and responsible employers, it, however, became practice to provide for a grievance process and depending on the level of commitment it reflects from management’s side and the level of comfort and security it instils in employees at large, trust in the grievance system may rise to more acceptable levels. The mere fact that we do not have statutory provisions legally obligating employers to commit themselves to institutionalise the giving of earnest attention to employee grievances (while the lack of such commitment caused many employers to be found wanting in the CCMA and labour courts in respect of fair practice), caused employers to regard formal grievance handling processes as a “nice to have” and being cautious not to create a platform for “moaners and groaners”. We, therefore, do not find much standardisation of grievance procedures in the workplace, while there are common denominators. Having said that, what I suggested in this article as the ideal in respect of a grievance policy and process, may, understandably, be frowned upon by some employers and HR/IR practitioners. “To each his own”, but in my experience, the extent to which the employer balances the effort between downward and upward communicative processes within the organisation, giving each such process its rightful place, ultimately is commensurate with the security and stability experienced in the workforce. Give it some thought and move another step forward in becoming an employer of choice. Assistance in this regard is available by simply contacting the JJK ER/IR Consultancy at jjk.erir@mweb.co.za. Author: J J (Koos) van der Merwe – Chartered HR Professional, registered with the SABPP