Every HR practitioner and people leader has experienced it. You settle in to start your day, with a full “to-do list”, and THAT email lands in your inbox. Great, how am I supposed to deal with this?

In this series of case studies, we explore these common workplace scenarios that are complex. They require not just legal advice and nous about risks, but practical solutions that factor in the human dimensions.

Caution: There is no single “right” approach. Instead, we offer a window into how we help solve problems that require nuance or may be time-sensitive, stressful, and evolving.

Our client has received a complaint against a senior manager

This is a situation that is common, and when it occurs, there is often pressure to respond quickly. Our strong advice is not to rush into a process before considering all relevant factors and options.

Case study

The call came from a not-for-profit client dealing with a familiar but delicate problem. An employee had lodged a complaint against a senior manager. It was not the first time this particular complainant had raised concerns about managers in the organisation, and none of the earlier complaints had been substantiated. Even so, that history did not mean this complaint could be dismissed. The question for the client was how to respond in a way that was careful, fair and proportionate, without being pulled too quickly into a process that might escalate matters unnecessarily.

From the outset, there were several moving parts to weigh up. The client needed to think not only about the complaint itself, but also about the impact on the senior manager who was its subject, the expectations of the complainant, and the wider reputational consequences for the organisation. One of the early issues we discussed was whether the manager should remain in their role while enquiries were underway, or whether a temporary change was needed to protect the process and the people involved.

Questions we might ask

When Melissa Scadden was called in, her first instinct was not to rush to a formal investigation. Instead, she started by asking the kind of questions that help clarify what is really going on and what options might be available:

  • Has the complainant indicated what he wanted to see change, as a consequence of his complaint?
  • How serious is the complaint?
  • Has the complainant provided any particular details with their complaint, such as examples of wrongdoing?
  • Is there any information supporting the complaint which suggests it is serious and not frivolous or vexatious?

Those questions opened up a broader discussion. Given the pattern of repeated complaints, the client had to consider whether the complainant had reached a point where they saw their position in the organisation as untenable.

Melissa also wanted to understand whether the complainant had realistic expectations about what would happen next, or whether they had already formed a fixed view that the manager should be removed.

Melissa’s approach

Melissa’s advice was to slow the situation down, without losing momentum. Her first recommendation was that the client have further discussions with the complainant to explain the process, test what outcome he was actually seeking, and make sure he understood the range of pathways available.

In some matters, those early conversations can reveal that the real issue is not simply the complaint itself, but that the employee no longer wants to remain in the organisation. Where appropriate, that can open the door to a careful discussion about separation on agreed terms. That option must always be approached cautiously, but it can sometimes be a more practical and constructive outcome than embarking immediately on a costly and disruptive complaint handling process.

In this matter, Melissa worked closely with the client on how to conduct that first meeting. She helped script a careful conversation for HR, so the complainant could be taken through the available next steps and given space to consider them rather than feeling pushed into a single course of action.

After those discussions, the complainant remained firm: they wanted the complaint investigated. That left the client with an important decision. Should it move straight to a full investigation, or should it take an intermediate step and conduct a preliminary assessment first?

That decision depended on a number of factors, including the nature of the allegations, the client’s own policies and processes, and any relevant enterprise agreement. Melissa talked the client through the advantages of a preliminary assessment. It offered a way to gather more information before committing to a full investigation, which can be lengthy, expensive, and damaging to already strained workplace relationships. Sometimes a full investigation is unavoidable, but in our experience it is usually worth pausing to consider whether there is another pathway that is both fair and effective.

In this case, the client (through Melissa as their lawyer) engaged an investigator to conduct a preliminary assessment. The investigator was to investigate, and provide a report to Melissa to determine whether there was sufficient evidence to justify a full-scale investigation or recommend alternative pathways to resolution.

Outcome

The preliminary assessment changed the shape of the matter. By the end of the process, most of the allegations were not supported by evidence, although two issues remained live. At that point, the client informed the complainant that it was prepared to move to an investigation of those two matters, but suggested trying mediation with the manager first. This time, the complainant agreed. The mediation was successful, and the remaining issues were resolved without the need for a further formal investigation.

Interestingly, a mediation had previously been offered and declined by the complainant, who thought there was “no point” and just wanted an investigation. A side benefit of a preliminary assessment process is that the complainant feels their complaint is being taken seriously and has an opportunity to “air their grievances” to an investigator, who is then able to gently test some of the assumptions and help the complainant understand what a formal investigation will involve. In this case, this was enough for the complainant to reassess the options available and give mediation a try.

No two cases are the same. How complaints are handled will vary depending on the resources available to the organisation, their policies, and whether the complainant is open to discussing all options that may be available to resolve their situation.

At Justitia, we like to understand all the features of the situation in order to discuss the number of pathways available – in our experience there are usually more than one.