Managing Workplace Obligations Through Alternative Dispute Resolution and Mediation

Most employers understand that they must ensure that their workplace is safe and free of bullying and harassment. However, employers have a positive duty in respect to discrimination, sexual harassment, victimisation, and psychosocial hazards.

Understanding Legal Obligations

Employers’ Positive Duty 

You need to ensure that you take proactive and meaningful action to prevent sexual harassment and psychosocial hazards. This can include training, awareness sessions, and ensuring that Managers are active in addressing behaviors before they occur and discouraging inappropriate behaviors. 

What is a Psychosocial Hazard? 

A psychosocial hazard is anything that could cause psychological harm (e.g., harm someone’s mental health). It can include job demands, low job control, poor support, lack of role clarity, poor organizational change management, inadequate reward and recognition, poor organizational justice, traumatic events or material, remote or isolated work, poor physical environment, conflict or poor workplace relationships and interactions, violence and aggression, as well as bullying and harassment. 

The Limitations of Workplace Investigations 

Workplace investigations are important in mitigating the employer’s risk moving forward, however, they don’t resolve the issue. Workplace investigations look into the allegation and uncover if it is occurring or not. The outcome of an investigation may lead to disciplinary action and the exit of an employee, which may resolve the issue, or it may lead to training, counseling, or consultation. 

Often a workplace investigation is seen as the only option to mitigate the employer’s risk. Workplace investigations can fracture relationships further, especially where the conduct is due to interpersonal differences or a breakdown in communication. 

When to Consider Alternative Dispute Resolution

It is imperative to conduct some preliminary investigations into what is occurring, and this may lead to issues of interpersonal conflict, misinterpretations, or poor leadership skills. Where this is the case, alternative dispute resolution may be a more appropriate option. 

Types of Alternative Dispute Resolution

1. Conflict Coaching 
   Working with the parties separately to find out the root of the issues and provide guidance on how they may manage these differently. 

2. Facilitated Discussions 
   Where there is no agreement from the employees to mediate and a third-party guides employees through sessions and provides impartial advice and/or alternatives for what may be occurring. 

3. Mediation Where Parties Are Willing 
   Guided mediation by a third party where the Mediator assists the parties in defining the issues and generating options to resolve them. The ownership of the issues and outcomes lies with the parties. 

Why Choose Alternative Dispute Resolution?

Undertaking alternative dispute resolution offers employers alternatives to workplace investigations and provides evidence of where the employer attempted to rectify situations where disputes or grievances have been raised. 

These approaches can be a lot less confronting for individuals, especially for the responding party, and offer a viable solution to resolve differences in a way that is not as confrontational as a workplace investigation. 

Struggling with Workplace Conflicts?

Alternative dispute resolution, like mediation, can be a less confrontational approach to resolving issues. Contact Kirsty Augustine at IRiQ Law for expert mediation support and guidance to foster a safer and more harmonious workplace.