Grievance Procedure – A voice for the employee
It is important to put the grievance procedure within proper context.
Let us first determine what lodging a grievance in terms of a grievance procedure is not:
- Grievances are not regulated by law – Dealing with employee grievances is not regulated by employment law – not by the Labour Relations Act (LRA) and not by the Basic Conditions of Employment Act (BCEA).
The only mention made within employment law regarding employees’ grievances is found in Section 115(3)(d) of the LRA, which is an enabling provision for the CCMA to provide advice and training to employees, employers, and their registered representative organisations in respect of the prevention and resolution of disputes and employees’ grievances. Obtaining this advice or training is however not prescriptive, but available on formal request.
Arguably, grievances may be regulated by a collective agreement as defined in the LRA and BCEA.
- The provisions of Section 187(1)(d) of the LRA do not apply in respect of the lodging of a grievance – a dispute regarding a dismissal resulting from a grievance cannot be associated with the employee having exercised a right conferred by the LRA or having participated in proceedings in terms of the LRA, hence such dismissal does not constitute an automatically unfair dismissal and lodging a grievance is not taking action against the employer (refer DBT Technologies (Pty)Ltd v Mariela Garnevska (LAC) 2020)
What then is the purpose of a grievance procedure?
The grievance procedure is part and parcel of the functional communication system between employer and employee. Where the disciplinary procedure is a downward communication channel from employer to employee, the grievance procedure is an upward communication channel from employee to employer.
A useful definition of a grievance is found in the case: Solidarity obo Van Tonder v Armaments Corporation of SA (LAC) 2019. Armscor’s definition of a grievance is quoted in this case and reads as follows:
“…any dissatisfaction or feeling of injustice which an employee may have which arises out of and in the course of the performance of his or her work, which is brought to the attention of Management”.
The LAC remarked as follows in the above-mentioned case regarding the subject matters of typical grievances:
It stated that grievance procedures usually deal with points of difference or tension within the workplace. It went further and stated that grievance procedures “…are the compulsory means of resolving conflict over run of the mill disagreements between subordinates and their superiors. A proper application of the grievance procedure aims at testing the legitimacy of any difference of opinion and through conciliation hopes to find workable remedial solutions”. I could not have described the purpose of the grievance procedure better.
Underpinning the rationale for having a grievance procedure in place (not compulsory, but as a good practice), is as stated by the Commissioner quoted in the LAC-case: Quest Flexible Staffing Solutions (Pty)Ltd (a division of ADCORP Fulfilment Services (Pty) Ltd) v Abram Lebogate (2015): “Our common law holds that there is an obligation between the employer and employee to show each other the same degree of dignity and respect. Moreover, even though an employee is subordinated to the employer, the employer is enjoined to act fairly”.
Let us get practical
Putting a grievance procedure in place – A grievance procedure can be a negotiated procedure involving the input of employee representative structures, such as recognised trade unions, or it can be a procedure formulated solely by the employer and made part of the employer’s employee relations policy infrastructure.
Either way, it is advisable to have such a procedure in place in order to promote and maintain sound employee relations in the workplace.
Just a word of caution: A negotiated grievance procedure would require any subsequent amendment of the grievance procedure to be negotiated, thus prohibiting any unilateral changes.
A consulted procedure, on the other hand, would provide for the input of employees while leaving the ultimate decision regarding the content of the procedure in the hands of the employer, along with the discretion to amend the procedure if and when deemed necessary.
Structure of the grievance procedure – Depending on the organisational depth of the company, it should be determined how many progressive steps should be provided for.
Usually, the first step will involve the immediate supervisor or manager, unless the supervisor or manager is considered to be involved in the matter which gave rise to the grievance, in which case it is escalated to the next step in the procedure.
Progressive escalation of the grievance should be provided for and where the grievance remains unresolved after exhaustion of the grievance procedure, recourse to the CCMA or Bargaining Council (as the case may be) will apply to the extent that a competent dispute referral is legally possible.
It must be borne in mind that the aggrieved employee is in the proverbial “driver seat” of the grievance and it is the prerogative of the aggrieved employee to decide whether a recommended remedy or solution is acceptable.
The aggrieved employee may not be denied the escalation of the grievance because, in the subjective opinion of management, the resolution proposed by management is considered adequate to resolve the grievance.
Prerequisites for a grievance properly submitted –
- The grievance must be work related.
- The grievance statement must be clear in respect of what precisely it is about and what the aggrieved employee’s expectations are regarding the resolution of the grievance.
- The person presiding at the grievance meeting must have the necessary authority to deal with the subject matter of the grievance in an objective and unbiased way.
- The grievance must be brought to management’s attention within reasonable time with due regard to the specific circumstances of the case.
- A grievance must not be channelled through the grievance procedure based on malicious or false accusations against another party.
- Group grievances (where a number of employees have a common grievance) would require the group to appoint a spokesperson nominated and mandated by them to articulate and argue the grievance in terms of the grievance procedure. It is not advisable that management deals with the group directly.
Management dealing fairly with a grievance
Affording the aggrieved employee an unthreatening opportunity to articulate the grievance.
The aggrieved employee may not be unduly prejudiced for having raised a grievance, for as long as the grievance is brought to management’s attention borne out of a genuine perception of work-related injustice or unfairness, although subjectively perceived.
Affording an unthreatening opportunity to the aggrieved employee implies that the grievance meeting should not be conducted like a disciplinary hearing where both parties appear in each other’s presence and cross examination of the parties takes place.
The aggrieved employee should be allowed to state his/her case in the absence of the implicated party, while providing adequate supporting information to the person hearing the grievance to enable him/her to, thereafter, conduct his/her own investigation (including interviewing potential witnesses) in the absence of the aggrieved employee.
Once a proper investigation is completed and the presiding person reached a conclusion regarding the validity of the grievance and decided on a possible solution to the grievance (if any), a feedback meeting should be held giving feedback (with reasons) to the interested parties by way of a “one way” communication session. No debating of the feedback given should be allowed. If the aggrieved employee is not satisfied with the feedback given, the grievance may be escalated to the next step.
It is within the discretion of the person hearing the grievance to allow both the aggrieved and implicated party to attend the feedback meeting or to give feedback separately to the interested parties.
If it is established that the employee utilised the grievance procedure for selfish and malicious purposes and without any proof of what is alleged, appropriate disciplinary proceedings may be instituted against the employee.
A possible exception could be where allegations of sexual harassment are the subject matter of the grievance, where it may be unreasonable to expect the victim to substantiate the allegations with direct objective evidence.
Circumstantial evidence and the established reliability and credibility of the testimony of the aggrieved employee vis-à-vis that of the alleged perpetrator should ultimately determine the validity of such a grievance.
The importance of utilising the grievance procedure
In several court cases which I researched it was found that where a grievance procedure was available within the organisation but was not utilised to initially bring the matter formally to management’s attention, this omission was frowned upon by the court and generally prejudiced the employee’s case in some or other way.
In the Quest-case referred to above at least one of the factors which the Commissioner at arbitration considered to justify the sanction of dismissal was the unconvincing explanation of the employee for not invoking the grievance procedure – the employee held the subjective and speculative view that lodging a grievance would amount to no solution. The LAC found no reason to disagree with the Commissioner’s reasoning.
Especially in alleged constructive dismissal cases, the failure to invoke the grievance procedure in order to address the seemingly intolerable situation, has often caused that constructive dismissal could not be proven.
Admittedly, there may well be circumstances justifying the belief that invoking the grievance procedure would, objectively speaking, not have been appropriate in a particular case. Especially where the organisational structure is particularly flat and the higher echelon of the organisation is either contaminated with prior knowledge of the matter or has shown bias, it would be understandable that the aggrieved employee will not have the required confidence in the grievance procedure.
Having a voice and to be heard by the person or authority who exercise control or influence over one’s interests and well-being is a recognised principle of natural justice.
An organisation which does not afford its employees a formal and credible opportunity to air their grievances, such as by way of a grievance procedure as described herein, is undoubtedly an unbalanced organisation.
It will only breed frustration and discontent among employees and force them to find other, more adversarial, and confrontational ways to make their work-related unhappiness known.
It is also true that (and unfortunately so), there is generally a level of distrust or cautionary reservedness amongst employees towards the perceived effectiveness of the grievance procedure.
This distrust is also not always without merit, because at times it did happen that aggrieved employees were prescribed by management when to be satisfied with a proposed solution to their grievance and it also happened that, in some round about way, the aggrieved employee was later unfairly prejudiced indirectly for having raised a grievance.
However, a well-formulated grievance procedure, negotiated or consulted with the workforce, containing all the checks and balances described herein to truly give a voice to the employee, coupled with a uniform and consistent application of the grievance procedure so formulated, will go a long way in inculcating the confidence and trust which should characterise the grievance procedure.