Reviewing Grievances at the Australian National University

Presenter Bradley Beasley LLM, LLB, Grad Cert Legal Practice Legal Practitioner of the: Supreme Courts NSW, ACT; and High Court of Australia

Overview Introduction Introduction Evidence Act Evidence Act Example Letters Example Letters Risks Risks Scenarios’ Scenarios’ Check Lists Check Lists Steps Steps Contacts Contacts Questions & summing up Questions & summing up Self Leaning Reading pack: Self Leaning Reading pack: Theory Theory Motivation Motivation Stress Stress University Related Policies University Related Policies

Introduction Introduction What is a grievance? It is a subjective matter, it arises when “a staff member feels aggrieved about a matter associated with his or her employment conditions, or when he or she disagrees with a decision, action or behaviour in the workplace by a fellow worker, supervisor or manager that may affect the working relationship or work environment.”[1] [1] [1] The Australian National University., Procedure for Staff Grievance Resolution Procedure, Approved 1 November 2007, [1]

Introduction What is a grievance? It has traditionally been looked upon as trying to resolve matters at an early stage to facilitate harmony within the workplace.

Introduction A successful grievance process is one that that is “capable of responding effectively to new or specialised circumstances”. [2] [2] [2] Tomas R Knight., Industrial and Labour Relations Review, Vol 39, No 4 (July 1986) Cornell University [2]

Introduction The purpose of a grievance procedure is to deal with a matter quickly, to save costs and attempt to resolve them “at the lowest possible level … without the intervention of third parties”.[3] [3] [3] Tomas R Knight., Industrial and Labour Relations Review, Vol 39, No 4 (July 1986) Cornell University [3] Tomas R Knight., Industrial and Labour Relations Review, Vol 39, No 4 (July 1986) Cornell University [3]

Evidence Act Review Folder Material

Example Letters Review Folder Material

Risks It is important to understand that some issues may result is broader issues that need to be addressed and they may have a significant impact on individuals, the University, and the community.

Risks If matters are not addressed professionally and in a timely manner this could result in third party involvement, this could end up in a public hearing, an award being made, cost and penalties being imposed on the parties.

Risks So do not think that a process arising out of legislation, Industrial Instruments and/or University policy have no implications, because they can.

Scenarios’ Review Folder Material

Risks Scenario Policy On 7 August 2007 the Full Court of the Federal Court handed down an appeal decision in Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120. Mr Nikolich commenced employment with Goldman Sachs JB Were as an investment adviser in May Mr Nikolich commenced employment with Goldman Sachs JB Were as an investment adviser in May The Company policy included provisions on integrity, safety, harassment and grievance procedures. Mr Nikolich was required to sign and return a form acknowledging some of the provisions of the Policy. The Company policy included provisions on integrity, safety, harassment and grievance procedures. Mr Nikolich was required to sign and return a form acknowledging some of the provisions of the Policy. In early 2003 Mr Nikolich's relationship with his immediate supervisor deteriorated. Mr Nikolich made complaints about the supervisor's conduct. Mr Nikolich did not believe that the complaints were properly handled and he developed a psychological illness that he attributed to his employment. In early 2003 Mr Nikolich's relationship with his immediate supervisor deteriorated. Mr Nikolich made complaints about the supervisor's conduct. Mr Nikolich did not believe that the complaints were properly handled and he developed a psychological illness that he attributed to his employment. He was absent from work due to illness for a significant period of time and his employment was ultimately terminated. He was absent from work due to illness for a significant period of time and his employment was ultimately terminated. Mr Nikolich commenced proceedings in the Federal Court for damages on the basis that the employer had breached certain contractual promises that he alleged were in the volume of HR policies Mr Nikolich commenced proceedings in the Federal Court for damages on the basis that the employer had breached certain contractual promises that he alleged were in the volume of HR policies Although the Court found that the “Grievance Policy” did not form part of the contract of employment, he was still awarded substantial damages. Although the Court found that the “Grievance Policy” did not form part of the contract of employment, he was still awarded substantial damages. The message arising out of this decision is: “ensure that University policy and procedures are followed”.

Risks Scenario Industrial Instruments On 11 April 2008 in the National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481 (11 April 2008) the Federal Court ordered Central Queensland University to pay the NTEU $6,600 for failing to consult it about staff cuts last year in breach of their enterprise agreement with an extra $400 in fines is to be paid to the Commonwealth.

Risks Scenario Not taken seriously In Simon Dennis Arquall v Jamaica Blue Pty Limited trading as Jamaica Blue Harbourside [2002] NSWCIMC 113 (23 July 2002) Mr Arquall: Raised a complaint. Raised a complaint. Alleged his employer owed him $4, under the Restaurant Employees (State) Award and the Annual Holidays Act for the period 1 September 1999 to 10 February Alleged his employer owed him $4, under the Restaurant Employees (State) Award and the Annual Holidays Act for the period 1 September 1999 to 10 February Complaint was dismissed by the employer. Complaint was dismissed by the employer. Proceeded to have his matter dealt with before the Courts as a small claim under the Industrial Relations Act 1996 (NSW). Proceeded to have his matter dealt with before the Courts as a small claim under the Industrial Relations Act 1996 (NSW). Was successful in pursing his claim. Was successful in pursing his claim. In such cases a staff member would also be entitled to costs and interest.

Risks Scenario In Action In Tak Wah Lau v Carlton & United Breweries Pty Ltd [2005] NSWCIMC 34 (12 April 2005) a former employee of Carlton & United Breweries Limited (“CUB”) Mr Lau pursued a claim when the employer failed to meet his demands. Mr Lau: Worked as a canning line operator with CUB from 20 June Worked as a canning line operator with CUB from 20 June Was transferred to the bottling line when the canning line was closed June Was transferred to the bottling line when the canning line was closed June Was terminated when his position was made redundant on 1 July Was terminated when his position was made redundant on 1 July Claimed he should have been given recognition of his external qualifications as this affected his remuneration. Claimed he should have been given recognition of his external qualifications as this affected his remuneration. Did not receive skills recognition, consequently he had been discriminated against or treated in some unequal manner compared to other employees. Did not receive skills recognition, consequently he had been discriminated against or treated in some unequal manner compared to other employees. Did not follow the grievance procedure. Did not follow the grievance procedure. Litigated his matter out of time. Litigated his matter out of time. Matter was dismissed along with his application for indemnity costs. Matter was dismissed along with his application for indemnity costs.

Check Lists Review Folder Material

Steps Steps

Questions & Summing Up