Court Summon Over a Simple Employee Issue? 5 Ways to Deal with Employee Grievances?

So what happens when that Court Messenger knocks on your HR door and says, “I am here to bring the Court summon in a case in which Mr. X your employee is the Plaintiff. Sir, please sign here where it says served to as I need to take this copy back.” At that point you are so shaken and not sure of what to do next as millions of thoughts run through your head. As is natural, your emotions skyrocket, your anger becomes incessant towards this employee who failed to follow the ‘simple’ internal grievance procedure, and is now dragging the beautiful name of your mighty company into the mud. Indeed something has to happen to this employee, soon, and unconsciously you swear to yourself and make it a personal mission to finish this employee no matter what, and make sure he is fired so that he can become the faintest memory the company ever had.

Maybe before you drop dead with all the blood pressure you are bringing to yourself, you may want to look into a few 5 easy steps that could assist you to resolve matters of employee grievances that have somehow landed into the Courts of Law:

1. Have A Formal Grievance Procedure In Place

A lot of HR people sometimes choose to create their own problems. You know very well that even when there is the hottest romantic relationship, at some point (it is just a matter of time) the lovebirds starts to notice tiny flecks of undesirable traits in their partners. What more for two total strangers called employee and employer? So why fold your arms and not create a grievance procedure to follow and reduce your headaches of trying to use the so called common sense and wisdom? When you have the formal procedure in place, it helps enhance chances of promoting fair play and protects employees against what might be construed as unfair treatment and/or capricious acts by management.

Many companies have well set grievance procedures, if you have one, make sure that it is being followed. If you do not have one, talk to the Labour Experts in your country to help you make one professionally. Generally, the grievance procedure should allow for fairness and employees being able to escalate matters to someone higher if they are not happy. The procedure may vary from company to company but many times it may take the following form: (1). An aggrieved employee should informally discuss their concerns with their immediate supervisor. If the Supervisor is the cause of the grievance, discuss the matter with that supervisor's boss. (2). Depending on the nature of the grievance, if informal ways fails, the employee can invoke the formal grievance procedure which may go through a number of stages as follows: (i). Raise a grievance with supervisor in writing. (ii). If the employee is not satisfied with the outcome of stage i or has not received feedback, the grievance may be raised with the next senior manager within the department. (iii). If the employee is still not satisfied, the grievance may be raised in writing to the Head of HR. (iv). If the matter is unresolved at stage iii, it shall be referred to the MD/CEO. (v). If the matter is not resolved by the MD, the employee may seek redress in the competent offices outside of the company e.g. Labour Office, Labour Court, etc. Take note that some cases (e.g. harassment), may skip stage i and ii under the formal procedures and be reported to HR.

Sometimes the grievance affects a group of employees, in that case, they can elect a delegation of not more than three (3) employees to communicate and act on their behalf but under no circumstances should they initiate a strike in order to lodge a grievance. Should a strike be an appealing option, employees need to go through the laid down procedures for declaring collective disputes as per the specific provisions of the Industrial and Labour Relations Laws in your country. Otherwise the work stoppage would be considered illegal and punitive measures would be instituted by the employer.

Now what has been talked about here may look easy and common sense, unfortunately it is not. To this effect, HR must ensure that: (i). The policies and procedures do exist, (ii). The managers and employees are trained in the same. Where practically possible, make sure the employee signs a training acknowledgement form (you may need it one day as proof that the employee was aware).

I have heard many HR people saying that if an employee does not know something, simply tell them that, “ignorance of the law is no defence”. Really? Yes, at law, there is an assumption that everyone knows the provisions of the law and therefore, when you commit an infraction, the penalties shall be raised accordingly due to the said assumption. Your company policies and procedures however are by no means Laws even though they may be binding on the two parties involved. It is a requirement that the applicable terms, conditions, and standard etiquette governing the employee-employer relationship are well understood and consented to by both parties. Sometimes the Courts may be more inclined to listen to an employee who claims that he did not know the existence of such a policy and procedure, and when the HR is asked, he cannot substantiate his claims that the employee knew as all along the handbooks have been gathering dust on the shelf (and maybe there simply well written in his head).

2. Establish What Grievance Is About

Anybody who has worked in the HR profession for a number of years would tell you that employee grievances stem from a lot of issues which I will group as follows:

• Conditions of Service – includes issues of remuneration, compensation, and benefits.
• Working Conditions –Includes concerns on protective clothing, exposures to certain temperatures, humidity, dusty, hazardous materials, poor lighting, as well as the type of equipment/technology provided to safely carry out the work.
• Management practices – Includes how employees look at how management treats employees. Do they perceive the company to be enforcing a culture of fairness and reasonableness? Do they feel insulted, abused, sexually harassed, and so on and nobody is doing anything about it?
• Policies and procedures – Do employees think some policies advantage some group or individuals over the others? If you are HR and you have employed people of diverse cultural, religious, and education backgrounds (just to mention a few), this is not easy.
• Job Design – Lack of clarity of what the employee is supposed to be doing.
• Employee Participation – Do employees feel consulted and part of what is going on in the company?
• Talent and Career Development – Is the company committed to assisting employees to advance in their careers? As some people favoured more than the others when it comes to development?

Knowledge of what the grievance is all about would assist you to know which angle to tackle the issue from adequately.

3. Analyse the Court Summon

If your received a Court summon, it is important to remember that just because an employee has dragged you to Court it does not mean that is this is the end of the world you should start sweating and panting all over the place. You may want to check out the following:

• Establish what is legally allowable and what is not. In some cases (civil cases), it is still possible for you to follow the employee, discuss the matter and then approach the Court before the day of the hearing that the two of you want to settle the matter amicably outside the Court. The Court will give you a day when you should report back that the matter was resolved (and all the necessary paperwork completed). Just remember that if the employee knows that the results of trying to settle the matter outside the Court will be less favourable for him, they are likely to refuse.
• Establish the actual issue of the Court summon. Understanding the actual summon and the reason behind it is helpful for you to prepare your defence. Sometimes you find that a supervisor is sued over benefits and remuneration issues which might be an issue more applicable to the HR practitioner.
• Establish who is being sued. Is it the Employee vs. Company or it is the Employee vs. Individual (e.g. you the HR, the supervisor, etc.)? Sometimes employees sues you or the supervisor in the personal capacity in a subordinate or lower Court where the Lawyer may not represent you and so you have to battle it yourself. Even then, feel free to consult so that you will know the right things to say. In cases where the Lawyers can represent you, let them do the job.
• Who Pays? In some cases you may want the supervisor who was sued in their personal capacity to foot the bill, and sometimes the company pays (and gives a warning to the supervisor). Whichever root you go, it depends on your company policy, and if you do not have one, remember that whatever you will do, you will set an example, and therefore it should be thought through.

4. Dismissing the Employee

Of course no one wants to wash their dirty linen in public, companies too do not take kindly to employees who go out of the company to say all the presumed bad things in the name of airing a grievance. In some companies therefore, failure to follow laid down grievance procedures in airing grievances is an offence that would lead to a dismissal. As I said in my earlier post on “This Employee Is a Criminal Who Should Be Caged! HR Why Are You Delaying to Dismiss?”, there is need to ensure that the due process is followed if you are contemplating on firing them.

The question is when do you fire them? Should you do it even before the current issue in court finishes or you may have to wait? You need to ask yourself what might be the implication of taking such an action? Could there be any concerns for contempt of Court? Many times it is said, exercise patience, and walk through the entire cases level headed.

Do not be overzealous or let your emotions get the best of you when it comes to dismissing your employee. Many times employees make it even easier for you because when they take you or the company to Court, they even stop reporting for work thinking that they will the case (many times it turns out they lose the case and lose the job). Depending on your company policy, they can be dismissed on desertion grounds (e.g. not reporting for work for 3, 5, 10 or whatever number of days). Again, this is why we tell HR that you need to have a way of noting the absence and presence for work of your employees as well as the disciplinary code in place. If you have these things intact, you can dismiss the employee even on two counts (hopefully you would have remembered to give them an opportunity to be heard where practically possible).

Where in doubt, consult the Labour Experts in your country as principles governing dismissals may be peculiar to your country. Also consult the Lawyers, or your trusted knowledgeable colleagues, and read widely. Over and above, simply be fair, be balanced, and be reasonable.

5. Retrain your Staff and Managers

Prevention is the best tool for the elimination of court summons. To this effect, the HR should endeavour to retrain employees and management of the requirements and the procedures to follow when airing grievances. Matters of grievances are better discussed with employees and the supervisors so that all people are made aware of what they should be doing and who they should go to at each particular time. Further, ensure that you keep your grievance policies and procedures up to date. Look out also to ensuring that there is overall industrial harmony and all matters being raised are being resolved quickly.

The Author Owen K. Kabanda is an HR Specialist and Neuropsychologist.