Grievance Resolution Procedure

Approved: 31/8/06

Table of Contents

Part 1 Rationale

Part 2 Glossary

Part 3 Grievances

Part 4 Conciliation

Part 5 Mediation

Part 6 Dispute Settlement

Part 7 Legislation

Part 8 Confidentiality

Part 9 Grievance which are malicious and/or lacking in substance

Part 10 Training

APPENDIX A - Guidelines for Grievance Conciliators

APPENDIX B - Guidelines for Grievance Mediation

APPENDIX C - Dispute Settlement Panel Meeting Procedures

APPENDIX E – Guidelines Flowchart for Conciliation and Mediation

APPENDIX F – Grievance Flowchart

APPENDIX G – Staffing Group Mandate

The purpose of the following procedures is to provide fast, fair and simple procedures to allow members of  the Little Yarra Steiner School and its community to resolve grievances.

The procedures are designed to prevent personal conflicts from becoming entrenched, to resolve grievances without delay, in a conciliatory and effective manner, and to ensure that the internal mechanisms for dispute resolution are easily accessible by staff and parents.

Grievances which can be dealt with under these procedures are:

3.1  Student grievances, except those in 3.4.1 below, relating to a decision, act or omission by a staff member or student, which is alleged to be wrong, mistaken, unjust or discriminatory.

3.2  Staff grievances, except those in 3.4.2 below, relating to a decision, act or omission by a staff member or student, which is alleged to be wrong, mistaken, unjust or discriminatory.

3.3  Parent grievances, except those in 3.4.3 below, relating to a decision, act or omission by a staff member or student, which is alleged to be wrong, mistaken, unjust or discriminatory.

3.4  Grievances which cannot be dealt with under these procedures and should be dealt with under other mechanisms, and contain appeal procedures:

3.4.1  Students
Assessment of performance;
Matters covered by the Occupational Health and Safety legislation
Misconduct; and
Any matter which in the opinion of the conciliator is likely to lead to disciplinary action.

3.4.2  Staff
Decisions of College of Teachers
Appointments;
Breaches of Awards and Conditions of employment;
Promotions, reclassification and allowances;
Matters of Occupational Health and Safety;
Procedures for termination on the grounds of ill-health; and
Any matter which has, or in the opinion of the conciliator, is likely to lead to disciplinary action; and
Any matter which is subject to specific legislation, such as Privacy and FOI Act

3.4.3  Parents
Assessment of performance of a student in their care;
Any matter which is subject to specific legislation, such as Privacy and FOI Act;
Matters covered by the Occupational Health and Safety legislation
Misconduct; and
Any matter which in the opinion of the conciliator is likely to lead to disciplinary action.

3.5   The conciliator may recommend to the College of Teachers not to enquire into a grievance, or if a conciliator has commenced to enquire into a grievance, recommend not to continue to enquire into the grievance where:

3.5.1  A period of more than 12 months has elapsed since the last act to which the grievance relates was done; and reasons provided by the grievant for the delay in reporting the grievance are not substantial; or

3.5.2  The conciliator considers the matter to be lacking in substance; or

3.5.3 The matter has been previously dealt with by another conciliator; and

3.5.4 There has been consultation between t he College of Teachers and the relevant Union(s).

4.1 A staff member, parent, member of the LYSS community or student with a grievance should make contact with a conciliator and explain the grievance.

4.2 The conciliator will clarify the issues. In consultation with the grievant, the conciliator suggests possible directions for resolution of the grievance. Refer Appendix A

4.3 The conciliator can, with the grievant's consent:

4.3.1 refer the grievant to another person who can provide relevant advice or assistance with the aim of resolving the grievance.

4.3.2 facilitate negotiation of the grievance between the parties

4.3.3 arrange mediation in compliance with the guidelines for these processes (Appendices A and B); or

4.3.4 where the conciliator is unable to implement any of the above, the conciliator will refer the matter for dispute settlement, to the College of Teachers.

4.4 The conciliator will maintain responsibility for case management, except when it is referred to dispute settlement.

4.5 Upon the grievant informing a conciliator of a grievance, the conciliator will act within three working days of receipt of the grievance.

4.6 The conciliator will, if requested by a dispute settlement panel, provide a brief history of the process.

5.1 Mediation requires the agreement of both parties.

5.3 The guidelines for the conduct of mediation are contained within Appendix B.

5.4 Mediation is to occur within 14 days of both parties agreeing to mediation.

5.5 Procedures for mediation are :

5.5.1 The grievant lodges a complaint with a conciliator.

5.5.2 Information about mediation is provided by the conciliator to both parties

5.5.3 With the consent of both parties the conciliator organises the mediation.

5.5.4 Both parties agree on who is to be the mediator.

5.5.5 Either party may be supported by a person of their own choice.

5.5.6 Both parties provide to the mediator a short statement, less than 1/2 page, setting forth their own position with regard to the issues that need to be resolved. The conciliator can assist the grievants in this process.

5.5.7 The mediation time and place is established and privacy assured.

5.5.8 Upon commencement of mediation, rules for mediation are explained to the parties.

5.5.9 At the conclusion of the mediation session the parties determine their agreement for resolution of the grievance. This is generally a written and signed statement, which is the property of the parties. It is presented to the conciliator. Alternatively where mediation is not successful, the mediator and/ or the parties report this to the conciliator.

6.1 The dispute panel is set up to resolve a formal grievance. If disciplinary action is indicated the panel will not proceed.

6.2 On referral of a formal grievance by a conciliator, the College of Teachers, or nominee, will provide the subject of the grievance with a copy of the formal grievance.

6.3 The College of Teachers, in consultation with the conciliator and the parties, or their nominees, will reconfirm that negotiation, conciliation and/or mediation could not be used.

6.5 A Dispute Settlement Panel can consist of one or three people.

6.6 Panel members must have been jointly selected by the College of Teachers, or nominee, and the parties or their respective Unions and have suitable background and/or training.

6.7 The composition of the panel, where there is only one person must be agreed to by the College of Teachers, and the respective parties, nominees or Union(s).

6.7 The composition of the panel, where there are three people, will be;

6.8.1 at least one of each gender;

6.8.2 if the grievant and/or the subject of the grievance are Union members, a nominee or nominees from the appropriate union or unions;

6.8.3 the chair of the panel will be appointed by the College of Teachers, after consultation with the respective parties, their nominees or Union(s).

6.9 The dispute settlement panel will normally be required to:

6.9.1 ascertain the facts by seeking such information as is necessary;

6.9.2 to make a recommendation on resolution of the particular case, on the balance of probability; and

6.9.3 make comment, where appropriate, on any matters of governance or structure which may have contributed to the dispute.

6.10 The Chair of the Panel will ensure that the parties are fully informed of allegations which affect them.

6.11 An independent person will be appointed to observe the panel's proceedings and will:

6.11.1 be agreed upon by both parties;

6.11.2 monitor the Panel's process (including attending any meetings between the Chair and the parties); and

6.11.3 report to the College of Teachers on the extent to which, in the observer's judgement procedural fairness, occurred. Both parties are entitled to this report.

6.12 Both parties will appear separately before the panel and may be accompanied by a person of their choice, who does not have speaking rights.

6.13 The panel may interview members of LYSS, parents, students and/or it’s community, and have access to any relevant documents which are not exempt under the FOI Act or Privacy policy.

6.14 The time requirements for the dispute settlement procedures will be:

6.14.1 agreement on the composition of the panel and the terms of reference occurring within 10 working days of the lodgement of the written grievance.

6.14.2 the panel subsequently meeting within the following 10 working days;

6.14.3 the panel completing and submitting its report, including recommendations, to the College of Teachers, or nominee, within 10 working days from the time started; and

6.14.4 the College commencing appropriate action within 10 working days after receipt of the Committee's report.

6.15 The panel's written report, including recommendations, will :

6.15.1 reflect the views of all members of the panel;

6.15.2 be signed by each member or the panel;

6.15.3 be directed to the College of Teachers, or nominee; and

6.15.4 be available to each party; and

6.15.5 be, in all other respects, a confidential document.

6.16 The dispute settlement panel shall immediately refer the matter to the College of Teachers for investigation if it appears that disciplinary action may be recommended.

6.17 If staff involved in resultant recommended action cannot or do not wish to implement fully the panel's recommendations, they must inform the College of Teachers and both parties directly of the reasons for their decision.

6.19 Further details for Dispute Settlement Panel meeting procedures are contained within Appendix C.

7.1 Equal opportunity legislation

7.1.1 Grievants to whom these guidelines apply, will in some circumstances have rights of complaint, whether against the respondent or employer or both, under the Equal Opportunity Act 1995 (Vic), or under federal discrimination laws which includes the Human Rights and Equal Opportunity Commission Act (1986). Reporting a grievance will not deprive a person of such other rights of complaint. Particularly in less serious cases it would be appropriate for supervisors and identified Grievance conciliators to encourage grievants to use internal procedures, initially at least. However, under all circumstances grievants should be informed of the existence of relevant external rights and the processes of complaint available through the Equal Opportunity Commission.

7.1.2 Under the Equal Opportunity Act it is unlawful to victimise a person (i.e. subject a person to any detriment) for having exercised their rights of complaint under that Act or who has given evidence or information, or produced a document in connection with any proceedings under the Act.

7.2 Defamation

7.2.1 Persons making a grievance, giving evidence as a witness to a grievance, or involved in the investigation of a grievance have a defence of qualified privilege in the event of a defamation action.

7.2.2 In general, where a person communicating a statement which may be interpreted as defamatory has a legal, moral or social duty to make the statement and the recipient has a corresponding interest to receive it, the defence of qualified privilege will be available.

7.2.3 Persons complying with the procedures contained in the College’s guidelines have a defence of qualified privilege in the event of a defamation action. This is provided that the making of, or hearing, investigating or acting on a grievance was done without malicious intent and in good faith, including genuine belief that the action was in accordance with Little Yarra Steiner School’s Grievance Resolution Procedures.

7.2.4 Persons complying with these procedures might reasonably expect the College to meet their legal fees in the event of a defamation action.

7.2.5 The defence of qualified privilege may also be available to a person who is defending an attack on his/her reputation, provided their statements are relevant to their defence.

7.2.6 The defence of qualified privilege is not available where a grievance is false and malicious, or is broadcast indiscriminately.

8.1 Any breaches of confidentiality, careless or otherwise, on the part of grievance conciliators, mediators, panel members, third parties or supervisors when dealing with a grievance may be subject to disciplinary or other action by the College of Teachers, or nominee.

9.1 Where a grievance is assessed by a conciliator to be lacking in substance the conciliator may submit the complaint to another conciliator for review.

9.2 Where a grievance is held by the Disputes Settlement Panel to be lacking in substance it must dismiss the complaint.

9.3 Where a grievance is found by the majority of the Panel to be false and malicious the Panel must refer the matter to the College of Teachers for investigation and possible disciplinary action or action regarding a student’s place in the school.

10.1 Trained grievance conciliators must attend training, of at least 4 days, every two years and receive supervision, during work hours, by the person responsible for the conciliators; and

10.1.1 Grievance conciliators must demonstrate to the College of Teachers through their experience or training, their competencies at being a Conciliator. Otherwise a training program is provided.

10.2 Mediators must be trained by a recognised organisation, which can include LEADR, Australian Commercial Dispute Centre, Community Justice Centres, or other recognized organization.

10.3 Any person selected for the Panel must receive training on procedural fairness (or demonstrate adequate previous training or experience), and be aware of the guidelines for LYSS dispute settlement procedures, unless they can demonstrate to the College of Teachers and Union representatives that they have prior experience and/or training in this area . Panel members must be aware of the guidelines for LYSS’s dispute settlement procedures.

i) Welcome grievant's approach, advise grievant of confidentiality policy and make the grievant aware of situations where confidentiality cannot be maintained;

ii) Indicate that the grievant may bring another person to the interview you arrange, if they wish. If necessary, arrange for someone to interpret at the interview.

iii) Provide a copy of grievance procedures to the grievant, and advise that less serious grievances may be noted confidentially, however more serious grievances must be formally lodged in writing.

i) Listen to the complaint seriously and sympathetically and be understanding of the person's distress. Be aware of your own responses and the grievant's concerns regarding the repercussions of the complaint.

ii) Remain impartial and do not prejudge the matter.

iii) Ascertain whether the grievant has approached other people, such as College of Teachers representative, Administration staff, union or outside agencies, such as the Equal Opportunity Commission.

iv) Ask whether the grievant objects to you taking notes. If this is agreed upon, take accurate notes, using grievant's own words where possible. Confirm with the grievant that any notes are an accurate account of their grievance and ensure that notes signed by the grievant.

v) Obtain a step-by-step account of the problem (this could sometimes require several interviews).

vi) Clarify with the grievant the facts of the matter as they have been related to you, and reach agreement with the person on the category of the grievance. Reiterate the policy on confidentiality.

At this point, assess the situation -

               a) Check to see if you can ascertain the nature of the matter;

               b) Depending on the type of issue, the grievant should be informed of other avenues of advice and assistance open to him or her, i.e. for an employment issue, administration officers, relevant unions, or outside agencies may be appropriate.

vii) It is important to establish what the grievant aims to achieve from the process of resolution. Often people choose only to seek advice on their rights, or advice on how they might best handle their own grievance. Determine with the person whether the matter is best resolved by -

               a) action on the part of the person with, where appropriate, the counsel and support of the Grievance Conciliators (College of Teachers representative, Wellbeing Co-ordinator, or Union delegate, as the case may be). This could include dealing directly with the person complained against, documenting any further occurrences of the behaviour, discussions with co-workers, putting the grievance on hold; or

               b) action on the part of the Grievance Conciliator insofar as it lies within that person's responsibilities or capacities; or

               c) referral to someone else, in which case the person may request the Grievance Conciliator to assist or accompany him/her.

viii) If, in the conciliators opinion, or after consultation with any third parties, the grievance appears to involve danger to people or property, the conciliator must refer the matter immediately to the College of Teachers, and where possible discuss the matter with the grievant.

If the Grievance Conciliator does not feel able to handle the matter, this should be discussed immediately if possible, with the complainant, but certainly no more than two working days after receiving the grievance. The aim of the discussion should be to decide what the person with the grievance should do next, including taking the grievance to a more senior person. Raising the grievance through another channel may be in the best interests of a person and should not be viewed as inadequacy on the part of the conciliator.

Likewise, supervisors should be trained to realise the limitations of their role and should be encouraged to recognise when they are not in a position to deal effectively with a grievance.

Grievance handlers should be trained to recognise the normal stress involved in being subjected to harassment and having to make a complaint about it. They should also be aware of the normal defence mechanisms employed by persons when confronted about the complaint, e.g., "I was only joking", "the complainant has a personality defect", "the complainant is inefficient", etc.

Once the desired course of action is determined, the grievance conciliator should act promptly to resolve the situation. Undue delay adds to the stress suffered by the complainant. Often, the complainant may have agonised over the situation for a lengthy period of time before summoning up the courage to do anything about the problem. It is therefore crucial that the matter be resolved with as little delay as possible.

Mediation requires:
         identification of the matters in dispute;
         confidentiality of the mediator and the parties;
         neutrality of mediator;
         recognition of the power imbalances. This also includes the gender issue, and possible coercion where the disparity of power, whether formal or informal, is too great. Where violence or threats of violence are part of the grievance, mediation may not be the appropriate approach, and alleged criminal acts will be reported to the police. Similarly where the grievant is fearful of violence alternative approaches will be required; and
         mediators who have successfully completed training from an accredited organization or
        demonstrated sufficient experience in mediation.

Mediation is an informal and flexible process. These guidelines have been developed to supplement existing procedures (in an award, enterprise agreement or contract of employment, and the Occupational Health and Safety Act 2004 or to stand alone where no other dispute resolution procedures exist.

A request for mediation shall contain a brief written statement of the nature of the dispute and the names, position, work address and other related details of all parties to the dispute and those who will support them, if any, in the mediation.

Upon receipt of a request for mediation, the conciliator will provide a choice of three mediators. The College of Teachers will appoint a mediator only in default of agreement as to mediator by the parties.
Usually, a single mediator will be appointed unless the parties agree otherwise.

No person shall serve as a mediator in any dispute in which that person has any financial or personal interest in the result of the mediation, except by the written consent of all parties. Prior to accepting an appointment, the prospective mediator shall disclose to the parties any circumstance likely to create a presumption of bias or prevent prompt meeting with the parties.

Any party may be supported by a person of his/her choice. The names of such persons shall be communicated to all parties. Any support person will be bound by the privacy requirement.

The parties, in consultation with the mediator, shall fix the date and the time of the mediation. The mediation shall be at any location agreeable to the mediator and the parties.

Wherever possible, at least 5 days prior to the first scheduled mediation session, each party shall provide the mediator with a short statement setting forth its position with regard to the issues that need to be resolved.

The mediator does not have the authority to impose a settlement on the parties but will attempt to help them reach a mutually acceptable resolution of their dispute. The parties authorise the mediator to conduct joint and separate meetings with the parties. If no settlement is reached, the mediator may immediately offer verbal suggestions about how the problem might be resolved, for the parties' consideration. The mediator will not give advice as to the likely outcome if the matter proceeds to another forum. Should the dispute not be resolved at the mediation, the mediator may not act as an expert, adviser or arbitrator in any subsequent forum.

Mediation sessions are private. The parties may bring a support person or persons to the mediation sessions. Other persons may attend only with the permission of the parties and with the consent of the mediator.

Confidential information disclosed to a mediator by the parties in the course of the mediation shall not be divulged by the mediator. All records, reports, or other documents received by a mediator while serving in that capacity shall be confidential. The mediator shall return any such documents to the parties at the conclusion of the mediation.

The mediator shall not be compelled to divulge such records or to testify in regard to the mediation in any adversary proceedings or judicial forum.

The mediator shall destroy his/her own notes at the conclusion of the mediation.

The parties shall maintain the confidentiality of the mediation and shall not rely on, or introduce as evidence in any arbitral, judicial, or other proceeding:

a) views expressed or suggestions made by another party with respect to a possible settlement of the dispute;

b) admissions made by another party in the course of the mediation proceedings;

c) proposals made or views expressed by the mediator;

d) the fact that another party had or had not indicated willingness to accept a proposal for settlement made by the mediator;

e) notes or statements made by the mediator;

f) documents presented at the mediation (unless these documents are otherwise discoverable); or

g) documents created for the purposes of the mediation.

There shall be no transcript of the mediation process.

Parties are not required to settle in the mediation. However, if a settlement is reached, the terms of the settlement should be set down in writing, binding upon the parties.

a) by the acceptance of a written settlement agreement by the parties;

b) by declaration of the mediator the effect that further efforts at mediation are no longer worthwhile;

or

c) by a declaration of a party or parties to the effect that the mediation proceedings are terminated.

The mediator shall not be a party in any subsequent proceedings relating to the grievance, such as conciliation or dispute settlement panel.

The mediator shall not be liable to any party for any act or omission in connection with any mediation conducted under these rules.

The mediator shall interpret and apply these guidelines insofar as they relate to the mediator's duties and responsibilities.

The grievant and the subject of the grievance will have been provided with a copy of the Committee membership list, prior to the meeting.

The Secretary invites the grievant into the room, introduces him/her to the Committee.

The Chairperson then;

ascertains that the grievant understands that s/he is before the Committee because of their formal grievance, and ensures that s/he is aware that the Committee makes a report, including recommendations, to the College of Teachers or nominee;
explains that the Committee's role is to investigate the grievance and ascertain the facts of the case on the basis of probabilities, not beyond reasonable doubt;
requests the grievant to explain the formal grievance to the committee; and
asks any pertinent questions and requests other Committee members to ask other relevant questions.

The Secretary invites the subject of the grievance into the room, introduces him/her to the Committee.

The Chairperson then :

ascertains that s/he understands that s/he is before the Committee because of a formal grievance, and ensures that s/he is aware that the Committee makes a report, including recommendations, to the College of Teachers or nominee;
explains that the Committee's role is to investigate the grievance and ascertain the facts of the case on the basis of probabilities, not beyond reasonable doubt;
requests the subject of the grievance to respond to the formal grievance; and
asks any pertinent questions to the grievant and requests other Committee members to ask other relevant questions.

If witness/es are to be called the Chairperson will explain to the subject of the grievance that following interviews with witness/es they will be entitled to reply to any additional matters raised by the witness/es.

The chairperson will:

explain to the witness/es briefly, the role of the Committee, the grievance that has been made;

invites the witness/es to provide any relevant information regarding the grievance.