3^rd October 2011

What is a grievance?

These are defined as problems or concerns and can be anything from bullying to poor supervision and can even include a sanction an Employer may have issued against an Employee. It is no longer acceptable to ignore a complaint from an Employee even if the complaint is as simple as a response to ‘How was your week?’. An Employer always has to be alive to the complaints or concerns from their members of staff no matter if they feel them to be trivial.

So you’ve heard a complaint, what then?

When such a grievance is received the aim then, as the Employer, is that the grievance is dealt with quickly and fairly to prevent the issue turning into a huge problem. Small issues ignored do not tend to go away, they tend to fester and turn into a crisis or even a constructive dismissal claim (discussed last month). A failure to give an Employee an opportunity to raise a grievance is a breach of trust and confidence that an Employer and Employee are expected to have in each other. A claim would arise if the Employee then left their position as a result of this.

What's a typical grievance procedure?

Something easy to understand, for both Employee and Employer, including who the Employee should go to and how.

The most important element is that the procedure is written down and the Employee has easy access to it if they don't already own a copy of it.

Every Employee has the right to be accompanied at a grievance meeting. This doesn't mean they can bring their mother or next door neighbour; it is limited to a fellow colleague or trade union representative.

After the meeting the Employer should then consider what action if any is to be taken and then communicate this to the Employee in writing without an unreasonable delay. The Employee always then has a right of appeal to that decision.

Some examples of grievances as can be found on the Jersey Employment Tribunal website.

Kosmider v First Class Catering Company 2006

Miss Kosmider was bullied and humiliated and in addition the Employer provided nowhere for her to go, no grievance procedure for her to follow, to deal with her complaints, so either she had to accept the treatment, or she had to leave.

MacKee v Jacksons (CI) Limited 2006

Miss MacKee stated Jacksons were in breach of her contract of employment by making deductions from her salary (for accommodation costs), without her consent or permission. Miss MacKee did not use the company's grievance procedure but the Tribunal found that as Miss MacKee did not have a copy it was irrelevant. Miss MacKee resigned because no one would hear or discuss her complaints.

Robinson v Department of Education, Sport and Culture of the States of Jersey 2006

The Department of Education, Sport & Culture introduced a Key Skills Policy in Maths from which she was excluded. A situation then developed where Mrs Robinson's experience was not respected and her status and role in Highlands College was seriously devalued to the extent that she was forced to resign. Of note in this case is that a grievance procedure was used but the Employer failed to look at exactly why she felt devalued thus missing the point.

What's Current?

The Absent Employee.

In January 2005 a lorry driver had an accident at work seriously injuring his spine and was therefore unable to do his job. He subsequently brought a personal injury claim against his Employer. Sometime later he was evicted from his home but failed to tell his Employer of his new address as required by the Employee handbook. In June 2006 the Employer was no longer receiving sick notes from the Employee and as such the Employer then sent a letter to his last known address Stating that if it had not heard from him by 5 July 2006 they could only 'conclude that you no longer wish to work for us and that you terminated your employment by your own volition.' The letter was returned by the post office. The Employee was unaware of this until May 2009 during the injury claim. In July 2009 he then lodged numerous claims including unfair dismissal. The Employer alleged that the Employee had ended his own contract of employment effective on 5 July 2006.

The Appeal Tribunal held that no effective steps were taken by either party to terminate the contract of employment until the injury claim in 2009, stating that his employment had been formally terminated on 5 July 2006. That was the Employee's first opportunity to know that his Employer no longer wished to be bound by the contract. He accepted that state of affairs by commencing tribunal proceedings on 28 July 2009.

What can be seen here is that the Employer must still carry out a full disciplinary procedure for failure to attend work and failure to keep in contact, it cannot assume. Whilst this seems unreasonable to most Employers, if not all, it is a warning that must be heeded.

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