The rise of the workplace ombudsman

A look at the benefits, the risks and how to use this function properly

Workplace conflict can be costly. It can have a negative impact on workplace culture and productivity and — if left to fester — can result in unplanned legal costs. As such, addressing workplace conflict expeditiously and internally can save an organization both time and money, and restore the workplace in an efficient and effective manner. 

One of the mechanisms for internal conflict resolution has been an ombudsman. This is a person (or office) who oversees or assists with the investigation and resolution of workplace complaints. They are, however, different than HR or equity/fairness officers, and the common functions of an ombudsman are to serve as a dispute resolution office, a prevention mechanism and an agent of change within an organization. 

The ombudsman is not a representative of the complainant, the respondent or the organization. In this way, the ombudsman is an independent party tasked with addressing a complaint. They are neutral and impartial decision-makers and their process is confidential. 

According to the Forum of Canadian Ombudsman, depending on the nature of the role, an ombudsman may:
• use mediation, negotiation and other informal and alternative dispute resolution tools

• use inquiries, investigations, reviews and recommendations to address individual and systemic issues

• advise, refer and provide information to resolve complaints

• explore trends and patterns to identify issues and affect change.

Why have an ombudsman?
There are a number of benefits to having an ombudsman as part of the conflict resolution arsenal:

• They provide employees with an impartial and independent recourse to either raise or discuss concerns (although often the ombudsman is a last resort for complainants).

• They provide information regarding problems, patterns and trends in the workplace.

• They facilitate an informal resolution of complaints that may reach the threshold of policy or legislative breaches.
• They assist with employee satisfaction and morale.

• They address workplace conflict at an early stage and avoid potential escalation and lawsuits.

• They provide a check on management and foster trust and transparency in the workplace.

How can they be a bad idea?
Crafting an ombudsman’s mandate that sets out the organizational commitment to achieve these benefits is, however, not sufficient. Mere reliance on a mandate without careful analysis of the ombudsman’s place in the organization can make this role practically useless.

Employers contemplating or implementing an ombudsman should beware of the following risks:
• Lack of organizational support: Before implementing an ombudsman, an organization needs the requisite acceptance and encouragement from the organization (employees and management). Otherwise, the person will struggle to find the resources and trust she needs to survive. 

• Poorly drafted mandate: If an ombudsman’s mandate disempowers her in the receipt, investigation and resolution of a complaint, her role will be severely diminished. Moreover, if his mandate is to serve as a sounding board for employees and keep their complaints confidential, there may be issues that are not brought to an organization’s attention that will pose future legal risk if the organization has a legal obligation to act. 

• Lack of training or experience: An ombudsman’s ability to “intake” complainants, distill the conflict and find an appropriate and feasible response is essential. It is also necessary for her to know and understand the inner workings and restrictions of the organization. Any deficiency in this regard can be costly as the ombudsman may overlook critical aspects of complaints, fail to address conflicts in an effective manner or over-promise on a particular result. 

• Inconvenience: An ombudsman who is not a visible part of an organization risks being ignored by complainants as they do not know how she can assist or how to connect with her. 

• Ignoring reports and recommendations: An integral part of an ombudsman’s role may be to identify conflicts and trends. These can be encapsulated in reports and recommendations. If an organization is not prepared to act on the reports and recommendations, it will not only risk undermining the ombudsman’s power to hold the organization accountable, but may inadvertently invite legal action questioning whether the employer is committed to a healthy workplace for employees. 

Key principles
To take advantage of the benefits of an ombudsman, employers should carefully consider how to implement this role by ensuring, at a minimum, the following principles are present in the ombudsman’s mandate and processes:

• Autonomy and accountability: An ombudsman should be provided with the organizational distance to be able to remain impartial. In this regard, it is important to ensure the reporting structure does not undermine the credibility of the ombudsman or that funding and other resources are adequately provided to avoid the need for discretion and permission. Otherwise, the ombudsman’s ability to question or hold accountable employees or management is diminished.

• Fairness: An ombudsman’s role and processes should adhere to the principles of fairness. This can mean providing a meaningful opportunity for the complainant and respondent to engage in the investigation or conflict resolution process.

• Efficiency and access: An ombudsman ought to respond to complaints and conflicts in a timely manner. Otherwise, parties to a conflict may not resort to the ombudsman or remain confident in its process. The ombudsman should be provided with the tools, equipment and data to accomplish his mandate, which may mean having adequate staff or access to information.

Implementing an ombudsman can be beneficial addition to the workplace. It can be a safe place for employees to address workplace disputes and complaints and will ideally lead an organization to better understand its workplace. 

However, if the ombudsman role lacks organizational support, clearly defined and applied practices, and access to resources, it may soon prove itself a more costly institution for an organization. 

Parisa Nikfarjam is an employment lawyer and workplace investigator at Rubin Thomlinson in Toronto. She can be reached at [email protected] or on Twitter @pnikfarjam.

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