INTHEBLACK November 2021 - Magazine - Page 50
F E AT U R E
// E M P L OY E E D I S M I S S A L
Above: Nick Northcott,
Immediation
50 ITB November 2021
“If your organisation has a lower level of trust, then
using third-party facilitators or mediators can be really
valuable in that process.
“Occasionally it’s appropriate to use an arbitrator
or an expert determinator. There are many different
ways to resolve disputes, and unfortunately what we
often see is employers don’t necessarily stand back
when they are in that position and ask, ‘What’s the
right tool to use for this situation – is it mediation
externally, is it arbitration?’
“The default pathway is what people typically go
for, and they don’t necessarily engage early enough
before the other party gets so aggrieved that they
call a lawyer and make a claim.”
Northcott says early intervention, often through
the process of mediation in the workplace setting, is
proven to reduce costs and the time it takes to reach
a resolution, not to mention typically being much less
stressful than a long, drawn out litigation.
Furthermore, he says going to mediation doesn’t
mean an employer is “giving in” to an employee’s
demands.
“Let’s say someone is trying to strong-arm you,
where people come to the table when you’re making
a legitimate business restructure and say, ‘You’ve done
this for a reason, and I want to extract some money
out of you’. Often people try to test that scenario in
the public domain, which can be very reputationally
damaging.
“Testing this same scenario in the private domain
with a mediator can provide an opportunity for the
employer to look someone in the eye and say, ‘I’m
not going to give in, I’m not going to relent, this is a
legitimate business decision, this is why I made this
decision, and if you choose to come at me on this I’m
going to hold firm’.
“Likewise, for employees it’s an opportunity to
privately communicate the issues to decision-makers
at their employer and give them an opportunity to
remedy the situation.
“The outcome of mediation isn’t always settling
and paying the other side. It’s a voluntary process
for people to put forward their views and seek
compromise, but it doesn’t necessarily mean giving in.”
A RISE IN EXTERNAL INVESTIGATIONS
Sivaraman says he’s noticed an increase in businesses
using external investigators when dealing with unfair
dismissal claims.
“While employers want to move on issues, there
seems to be a trend towards engaging external
workplace investigators. In the past, you’d find
investigations conducted internally through people
and culture teams.
“I think it’s a combination of wanting to outsource
responsibility to some degree and say, ‘We’re just
acting on the findings of the investigator’, to wanting
to give the impression of impartiality.”
Northcott says that, where historically many
complaints were settled behind the scenes, more
people want to take a public stance.
His advice is to nip situations in the bud before they
become too big to deal with.
“My advice to both parties – employees and
employers – is that situations are often best resolved by
having constructive discussions between all parties.”