Personal Grievances

Feb. 18, 2020

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What is a personal grievance? 

A personal grievance is a type of complaint that an employee can raise against a current or former employer if the employee believes that the employer has acted unfairly or illegally. 

The personal grievance process may be used if an employer has dismissed an employee unfairly or unjustifiably disadvantaged them in some way such as suspending an employee, underpaying an employee, or giving an employee a written warning. Personal grievances may also be raised on other grounds, such as discrimination or sexual harassment. 

The most common types of personal grievance claims are those for unjustified dismissal and unjustified disadvantage. An employer may be able to justify these actions if there are good reasons. Justification is determined "on an objective basis" by asking whether the employer's actions, and how the employer acted "were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred. 

 

Process

A particular process must be followed when raising a personal grievance. The grievance must first be raised with the employer. If an employee is not satisfied with their employer's response, a free mediation service is available through Employment Mediation Services.

The mediation process is relatively informal and provides flexibility for the parties. Given that settlement is a voluntary agreement, the parties are not restricted to the remedies available in the Employment Relations Authority (the Authority) and the Employment Court. The Employment Relations Act 2000 imposes strong confidentiality obligations on the parties and a genuine attempt at mediation is normally a prerequisite to a grievance being heard by the Authority. 

 

In the event that mediation is unsuccessful, an employee may take the grievance to the Authority. The Authority will investigate the personal grievance, issue a determination and make any orders it deems appropriate. A party that is dissatisfied with a determination of the Authority may challenge that determination by electing to have the matter heard by the Employment Court. 

 

The 90-day rule

The general rule is an employee must raise a personal grievance with his or her employer within the period of 90 days beginning with the date on which the alleged action occurred or came to the employee's notice, whichever is the later, unless the employer consents to the being raised after the 90-day period. 

If an employer does not consent to the grievance being raised after the 90-day period, an employee may apply to the Authority for permission to raise the grievance out of time. However, an employee can only do this if they can prove the delay was due to exceptional circumstances and it is "just" to allow it. Exceptional circumstances can include:

●   The employee being unable to raise a grievance due to health issues caused by the problem.

●   The employee's representative failed to ensure the grievance was raised within the required time. 

●   The employment agreement does not explain services available for resolving problems or include a reference to the period of 90 days.

●   The employer failed to provide reasons for dismissal after being asked to do so. 

 

Grounds for raising a personal grievance

The Act provides a specific set of grounds for raising a personal grievance:

●    Unjustified dismissal

●    Unjustified disadvantage

●    Discrimination

●    Sexual harassment

●    Racial harassment

●    Duress in relation to union membership or union activity

●   The employer has failed to comply with part 6A of the Employment Relations Act, which relates to continuity of employment in a restructuring.

●   Breach of the employee's rights relating to agreed hours, availability clauses, cancellation of shifts or restrictions on secondary employment.

●   Adverse treatment for health and safety reasons.

 

If you think you may have grounds for a personal grievance, contact us on employment.law@becker.co.nz 

 

Richard Boud

Staff Solicitor

 

_{Disclaimer: The information contained in this article is general in nature and not tailored to your personal circumstances. It is only current as at the date posted and should not be relied upon as legal advice. If you require legal advice, please contact us for further assistance,}