Recommendations
on employment
problems in Tunisia

1.4 GRIEVANCE PROCEDURE RELATED TO DISMISSALS

Guideline for employment problems / PREVENTING: 1.4 Grievance procedure related to dismissals at the workplace

Most plausible interventions

During the orientation process of the available literature, we identified the following intervention as most plausible for conflicts on unfair dismissal:

Grievances are complaints made by an employee to his or her employer as part of a formal work-related complaint process. Employees may file grievances at work because of a wide range of workplace issues where the actions of the employer or a co-worker are found to be unjust or unjustified. All employees have the right to present a grievance to their employer, unless the employee is a freelancer or self-employed for example. Grievances should therefore be given to the attention of the employer so that the matter can be investigated and resolved fairly. The employer must then respond to the complaint and follow a fair and legitimate grievance procedure.

This procedure, developed by human resources experts, aims to mitigate legal action.

It is important to understand that there is no redundancy between this grievance procedure and the fairness standards procedure used by employers for dismissal. Indeed, both procedures require setting out the issue of concern in writing, holding a meeting to discuss the matter and providing employees with an opportunity to appeal the decision. But this grievance procedure is used by the employee, whereas the fairness standards procedure is up to the employer. Moreover, this work-related complaint process or grievance procedure can be initiated:

Either before the employer initiates a formal procedure of dismissal against him/her. This is because informally, the employee had knowledge – by his/her employer and/or the human resources department that allegations were being made against him/her and that these charges could lead to dismissal. In this case, the proposed procedure would allow the employee to defend himself or herself against these allegations by sending a grievance letter to the employer and the Human Resources Department. This procedure, if successful, can prevent the employer from continuing the dismissal proceedings initiated against the employee if it turns out that his/her dismissal was not founded, thanks to the complaint initially filed by the employee.
Either follow a procedure or make a decision to dismiss the employer. The employee has 90 days or three months, to start this procedure after his/her dismissal. This procedure does not imply any redundancy with the dismissal procedure initiated by the employer, which also involves an investigation of the facts. If the employer’s procedure did not yield satisfactory results for the employee, he/she has the right to refer to this grievance procedure and to initiate a new investigation. This grievance procedure must be considered and implemented because if the employee decides to take the matter to court (if the outcome of this second procedure is still unsatisfactory to the employee), the employer will be judged on the compliance and results of this procedure. In other words, if the employer fails to conduct this investigation process appropriately, this could lead to claims in court and be subject to further review in court.

However, if this work-related complaints procedure used by the employee takes place in parallel with a procedure already in progress by the employer, it cannot be launched during this same procedure launched by the employer, because this procedure already allows the employee to make representations, so, it would create redundancy in the process.

For the purpose of the PICO question, we compare applying a grievance procedure related to dismissals at the workplace with not applying one.

PICO question

For parties to an unfair dismissal dispute, is applying a grievances procedure related to dismissals at the workplace more effective than not applying one for employee protection and conflict resolution?

Search strategy

The databases used are: HeinOnline, Westlaw, Wiley Online Library, JSTOR, Taylor & Francis, and ResearchGate.

For this PICO question, keywords used in the search strategy are: employment, labour, disputes, conflicts, dismissal, procedure, grievances, employee, employer.

Assessment and grading of evidence

The main sources of evidence used for this particular subject are:

S.Wood, R.Saundry, P.Latreille, “Analysis of the nature, extent and impact of grievance and disciplinary procedures and workplace mediation using WER2011”, 2014.
J.Earnshaw, M.Marchington, J. Goodman, “Unfair to whom ? Discipline and dismissal in small establisments”, Industrial relations journal, June 2013.
T.MacDermott, H.&H. Cuttler, “Managing individual workplace grievances and disciplinary procedures”, Australian Centre for Industrial Relations Research and Training, November 2002.

Web links

The main sources investigate the role and influence of grievance procedures at the workplace. The authors explore how grievance procedures are made available for employees and their links to disciplinary sanctions, dismissals, employment tribunals, and employee attitudes. Our research also relies on human resources experts’ experiences, practices, recommendations, and guidelines.

They recommend that employers train employees on how to handle a grievance and even develop a grievance policy to help employees understand how to make work-related complaints and assist managers in treating these issues fairly and effectively. This policy should be updated and accessible to all staff, for example, through a procedures manual or a website.

So, what are the steps for a grievance procedure related to dismissal?

The ACAS Code of Practice outlines the procedure that employers and employees must follow when dealing with a grievance in the workplace. Although the ACAS Code is not legally binding, it is considered a best practice to follow. According to it, the grievance procedure should include and follow the following steps:

Most workplace issues can be resolved informally and effectively once they have been brought to the attention of management, such as the line manager or supervisor. For example, in the case of a dismissal for misconduct, the employee may request to speak with his or her employer to understand the allegations against him or her and have the opportunity to provide an explanation to his or her employer. If the issue is not resolved, the employee submits a grievance letter to the employer.

If the employee has informally raised the issue with the employer with no satisfactory outcome, the employee must draft a letter of grievance, specifying the nature of the complaint and providing any supporting evidence and even proposing solutions, if possible. In case of a dismissal, the employee would write a grievance letter claiming unfair dismissal. If the employee has already taken initiatives to resolve the issue (such as talking to the manager), they should be mentioned, in detail, in this letter to be signed, dated and sent to the person concerned within the organization. This is usually the manager, but in the case of a dismissal the complaint is against the employer, so the letter should be sent to the human resources department while keeping a copy of the letter.

Once received, the human resources department must confirm receipt of the letter to the employee by guaranteeing that the matter will be investigated and explaining the next steps in the procedure in terms of dates. Experts recommend keeping the employee informed of the ongoing investigation into their grievance as there is evidence that a lack of regular and constructive communication could lead the employee to believe that his or her request was not taken seriously and could further alter his or her relationship with the employer and the organization.

The purpose of the investigation is to identify and understand all the facts of a case or incident and to enable fair, objective and informed decision-making. The investigation is a fact-finding exercise, so findings and decisions should be deferred until all evidence has been gathered and discussed with the employee at the grievance hearing.

The investigation should be conducted by a staff member who is not involved in the complaint. But conducting an internal investigation is not always an appropriate solution as internal HR teams may not have the necessary hindsight, expertise or experience to conduct internal investigations. And the investigator should not be involved in the final decision-making process to ensure fairness and credibility in the process. In these circumstances, it is preferable for employers to work with independent human resources experts who are experts in external investigations.

After conducting the investigation, a meeting is arranged between the employer and the employee to try to resolve the issue that was raised. The employee should be well prepared; he/she is allowed to bring evidence and documents to the hearing as well as witness(es) to support his/her complaint. It could be a colleague or a trade union representative but the employee has to inform the employer before the meeting.

Notes must be taken during the hearing. At the end of the hearing, the employee will be asked to review the notes, sign and date a copy of these notes, which serve as a record of the hearing.

After the hearing, the employee must be informed promptly and in writing of the employer’s decision and the appeal procedure to be followed, if he/she wishes. The grievance policy developed by the organization should also explain the appeal process.

The employee has the right to appeal this decision and any part of the grievance process they think is unfair or incorrect. If the employee has a union representative, he/she may seek advice from his/her representative before initiating an appeal process. The employee may therefore appeal quickly (five days are recommended after the decision is made) if he/she believes that the decision was wrong, that the grievance process was incorrect or unfair, or if the employee has new evidence. The employee must appeal in writing to the employer, detailing the reasons for the decision to appeal, including the proposed solutions, if possible.

An appeal session is held. The employer must hear the employee’s claims even if a new investigation must be conducted.

The employer shall make a final decision and inform the employee of the decision as soon as possible in writing. If the issue is not resolved through the grievance process, the employee may apply to the Tribunal, but a claim to the Tribunal will always be the option of last resort.

Quality of evidence and research gap

According to our research method, we grade the evidence comparing applying a grievances procedure related to dismissals at the workplace with not applying one for conflict resolution, as high. The resources available are mainly recent medium-sized research (scholarly articles in internationally reputable periodicals). But the research team has upgraded the evidence as it also relies on human resources experts’ experiences, practices, recommendations and guidelines.

Recommendation

Desirable outcomes

Applying a grievances procedure related to dismissals at the workplace	Not applying a grievance procedure
Applying a grievances procedure related to dismissal at the workplace aims to mitigate legal action. It allows the employee to protect his/her position by putting down a ‘marker’ on the issue he/she brings to the attention of the employer^[1].	Most workplace issues can be resolved informally and effectively once they have been brought to the attention of management, such as the line manager or supervisor. For example, in the case of a dismissal for misconduct, the employee may request to speak with his or her employer to understand the allegations against him or her and have the opportunity to provide an explanation to his or her employer and find, together, a solution.
The grievance process allows the employee to formally set out his/her complaints before the employer takes further action ^[2]. This may in some cases prevent the employer from taking further action during the grievance investigation and prevent the employer from proceeding in the manner originally intended.	Not applying a grievance procedure or failure to do that does not prevent the employee from bringing the claim to the tribunal; the grievance procedure is not mandatory for legal action.
This procedure has some flexibility that allows negotiation and resolution.

Undesirable outcomes

Applying a grievances procedure related to dismissals at the workplace	Not applying a grievance procedure
Workplaces with written procedures tended to experience more grievances, disciplinary issues and employment litigation. “The most convincing explanation for this is that organizations that are prone to conflict are more likely to adopt robust procedures” such as grievances procedure^[3].	This does not guarantee that the employer’s decision is fair. In other words, the reason for the dismissal was properly and fairly investigated and decided.
This procedure is not appropriate for all work environments. If the presence of procedures was positively associated with organizational size, procedures were most likely to exist in organizations with 500–999 employees only but not in small organizations (5-9 employees).	Without a well-documented and detailed process, the company can claim that it had no knowledge of this complaint, so it becomes easy for any employer to ignore or dismiss complaints. Therefore, this situation can leave room for bias, discrimination, harassment etc. in the workplace rather than preventing and addressing these problems and before complaints degenerating into something more serious (before they result on legal action in particular).
These procedures are not sometimes applicable to all employees and this depends on several factors, such as the sector in which the employee works or the size of the company that employs the employee. For example, grievance procedures were least likely to be found in hotels and restaurants, while wholesale and retailing workplaces were less likely to have grievance procedures ^[4].	The absence of grievance procedures does not help a company foster a culture of transparency, openness, and trust, where employees feel heard and valued, by giving them a tool to resolve their problems instead of being less productive or quitting their employment ^[5]
	If the issue is not resolved through a grievance process, the employee may apply to the Tribunal. But a claim to the tribunal will always be the option of last resort. This is because while a grievance procedure aims at mitigating legal action, a claim to a tribunal constitutes a lengthy, costly and challenging process for the employee.

Balance of Outcomes

Taken together, the available research suggests that applying a grievance procedure related to dismissal at the workplace aims at mitigating legal action by allowing the employee to bring formal complaints to the attention of the employer before the employer takes further action on dismissal. So, it will enable the employee to protect his/her position, his/her employment. However, it has been shown that workplaces with written procedures tended, paradoxically experience more grievances and employment litigation. Moreover, this procedure is not appropriate for all work environments, depending on the organization size and the employee’s line of business.

On the other hand, it has been shown that most workplace issues can be resolved informally and effectively once they have been brought to the attention of management. Even without a grievance procedure, the employee could always bring the claim to the Tribunal. But the Tribunal will always be the option of last resort because it is a lengthy, costly, and challenging process for the employee. Not applying a grievance procedure does not guarantee that the reason for the employee’s dismissal was properly and fairly investigated and decided.

Thus, applying a grievance procedure related to dismissals at the workplace is preferred.

Recommendation

Taking into account the balance of outcomes, the benefits for parties to unfair dismissal dispute and the quality and consistency of the evidence, we make the following recommendation: the employer should apply a grievances procedure related to dismissals at the workplace.

View References

^[1] Landau Solicitors (n.d). Grievance at work. URL: https://landaulaw.co.uk/grievance-at-work/

^[2] Ibid.

^[3] S.Wood, R.Saundry, P.Latreille, “Analysis of the nature, extent and impact of grievance and disciplinary procedures and workplace mediation using WER2011”, 2014.

^[4] Ibid. [5] https://www.indeed.com/recrutement/c/info/grievance-procedures-for-a-workplace