The Myth of the Informal Complaint

25 May 2021

Today we are going to have a look at a subject that comes up regularly for us and our clients – informal workplace complaints. When do they arise and how should they be managed?
It is very common to hear comments such as “A complaint has been raised, but only informally, so we have not done anything about it yet”. This approach is understandable but unfortunately, it is misinformed and highly risky.

Under work, health and safety legislation (including the Work Health and Safety Act 2011 (NSW)), any person ‘conducting a business or undertaking’ must:

    • eliminate risks to worker health and safety where reasonably practicable; and
    • where it is not reasonably practicable to eliminate risks to worker health and safety, minimise those risks as far as reasonably practicable.

When assessing whether an organisation has done what is ‘reasonably practicable’, factors such as what the organisation knew, or ought to have known, are key.

Upon the making of a complaint, whether formal or informal, the organisation is on notice of the relevant issue and must take appropriate action. Any complaint that is sufficiently serious will need to be investigated, regardless of any label attached to it or any desire of the complainant not to have it pursued. This means that, no matter how trivial they may seem, complaints must be assessed for risk quickly and actioned accordingly. Do not assume that because a complaint is labelled as ‘informal’, that it is not serious or can be ignored.

Informal complaints can be deceiving because they are often raised verbally by an employee insisting that they don’t want the issue to go any further. It is also important to keep in mind that an organisation’s obligations in relation to work health and safety extend to all workers, not just the complainant. Therefore, investigating a complaint might be necessary for others, if not for the complainant.

The key takeaways are these:-

    1. All complaints, whether formal or informal, need to be assessed for risk as soon as possible – their health risk, legal risk, cultural risk, financial risk, reputational risk – and then be dealt with accordingly, regardless of the wishes of the complainant.
    2. It is the substance of the complaint itself, rather than the characterisation of it by the complainant, that should determine the action (or not) to be taken.
    3. As soon as a complaint is made, whether formally or informally, the organisation is on notice of the potential risk to health and safety, and must satisfy its obligations under WHS legislation.

There is no such thing as an informal complaint. A complaint is a complaint, and the way it is managed must depend on its substance rather than its form.




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