Mar 17

“Haven’t you left the building?” Why organisations must resist the temptation to discount complaints by former employees

Worklogic Senior Consultant, Samantha Edwards discusses taking complaints of former employees seriously.

 A scenario that is not uncommon for employers is the task of considering how to manage a complaint being made by former employees or, a staff member who is finishing up their employment with an organisation. Often employers view such complaints with suspicion or see the complaint as lacking legitimacy compared to a complaint made by a current employee.

Some organisations go as far as to adopt a practice of not going through a formal investigation process unless the allegation is at the most serious end of the misconduct spectrum. In some instances, complaints by former employees might even be left entirely unacknowledged by the organisation.

This can pose several risks to the organisation, and employers would be well advised to ensure that such complaints are subject to the same triaging process as a complaint received by a current employee.

When do complaints by former employees arise?

Potential scenarios where complaints by former (or soon to be former) employees can arise are:

  • complaints being raised through the exit interview process or within a letter of resignation;
  • allegations being raised for the first time as part of legal proceedings or in correspondence from a former employee or from the employee’s legal representative; and
  • less commonly, where allegations by a former employee come to the organisation’s attention as the result of media reporting.

Similar issues can also arise in a workplace investigation into a complaint by a current employee, where there is evidence to indicate that a former employee has also been the target of the respondent’s behaviour (such as sexual harassment or bullying), and the organisation must consider whether to contact the former employee as a source of information/potential complainant.

Why might an organisation overlook a complaint by a former employee?

There are several reasons why organisations may experience a sense of reluctance to investigate complaints by former employees, including:

  • the lack of an ongoing employment relationship with the complainant, which may engender a view of the complainant as an ‘outsider’, (a form of ‘in-group/out-group’ unconscious bias);
  • a perception that there is no obligation to investigate such a complaint, on the basis that the employer’s duties or obligations to the former employee have come to an end;
  • a suspicion that the complaint is a ‘dry run’ for a legal claim. Employers choose to wait and see whether formal action is taken;
  • if the former employee did not raise the concerns previously whilst still employed, the complaint may be seen as vexatious or simply the product of an employee leaving on ‘bad terms’;
  • concerns about confidentiality, and the employer’s lack of authority to direct the former employer to maintain confidentiality in any process the organisation undertakes.

Why do former employees raise complaints?

It would be prudent for organisations to consider complaints by former employees with an open mind and as a potential rich source of data on organisational risks, unchecked poor behaviour and cultural hot spots within the organisation. There are several valid reasons that a former employee may choose to raise a complaint only after leaving an organisation, including:

  • having ‘nothing left to lose’, where the former employee lacked the confidence to raise the issues more formally whilst still employed, perhaps due to concerns about damage to career progression or victimisation. In some cases, the complainant may have already sought to raise their concerns in some manner prior to leaving, but the complaint was not properly managed or escalated to an appropriate person;
  • since leaving the organisation, the complainant has gained a clearer head space about particular events and the circumstances of their leaving, and only now feels empowered to voice concerns;
  • where a complaint becomes aware that others are now (reportedly) experiencing similar behaviour and they feel compelled to ‘speak out’ (in such cases, issues of potential collusion amongst witnesses may also need to be considered).

Why should such complaints be taken seriously?

While not every complaint by a former employee will require a formal investigation, a proper triaging process should be applied to determine the best way to manage the complaint- taking into account all the circumstances and the nature of any potential allegations.

Where systemic issues or organisational practices are the cause for concern, complaints may be more suited to a workplace review or audit process; in other cases, the alleged behaviour may be able to be addressed by way of feedback or discussion of the concerns with relevant individuals.

Ensuring the complaints of former employees are properly triaged can support:

  • risk management and good governance – ensuring individuals are held to account for alleged behaviour and the risks created by this poor behaviour when it is left unchecked. A complaint by a former employee also puts an organisation or those receiving such complaints ‘on notice’;
  • improved relationships with the former employee– by demonstrating that their concerns are being managed appropriately (noting that former employees are just as likely to influence outside opinions about an organisation as current employees);
  • a proactive response to any potential legal action by the former employee, through appropriate fact finding. Failure to respond to a former employee’s complaint may in some cases be more likely to cause the person to bring legal action, than if the organisation had taken the time to engage with the former employee, to ensure that they feel heard;
  • legal compliance – under some legislative and compliance frameworks, organisations may also be required to properly investigate and manage particular allegations by former employees, including under whistleblower legislation and reportable conduct scheme applying to child-related employment. Organisational policies may also stipulate that certain allegations are to be dealt with in a particular way, regardless of how the allegation arises.

Concerns about confidentiality can often be managed through requesting that the former employee maintain confidentiality or considering entering into a formal confidentiality agreement. In any event, a former employee whose complaint has been the subject of an appropriate process is probably less likely to bad mouth the organisation than one whose complaint has been left unacknowledged and unconsidered.

Worklogic consultants are highly experienced in conducting independent workplace reviews into dysfunctional teams and workplaces, large and small, across Australia. Do get in touch if you’d like to chat to our team about how we can help your organisation.

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