What happens if an employee raises a personal grievance?
A significant component included in New Zealand employment law includes an employee’s right to raise what is known as a ‘personal grievance’. Essentially, a personal grievance is a formal legal proceeding that an employee can bring against their employer. This article explains this proceeding further and the approaches an employer can take should they face such a claim.
If an employee believes that they have been mistreated by their employer (whether unfairly or illegally), they can potentially raise a personal grievance. This right is provided to employees under section 103 of the Employment Relations Act 2000. The most common occurrences that initiate an employee to raise a personal grievance include instances where an employee believes they have been unfairly dismissed and/or mistreated by their employer. Other occurrences that can potentially lead to a personal grievance include: constructive dismissal – instances where an employee felt that they had no choice but to resign from their employment due to an employer’s actions. Discrimination – where an employee believes that they were subject to discrimination by their employer. This could include treating an employee unfairly because of their gender, sexual orientation, religious beliefs and/or ethnicity. Health and safety concerns – where an employee believes their work environment is in breach of health and safety requirements that an employer is obliged to provide to its employees.
An employee has the right to raise a personal grievance with their employer provided that the claim is made before 90 days have passed since the alleged actions/inactions occurred. Once raised, an employer is encouraged to discuss the grievance informally with the employee with the intention to resolve the matter. Resolving the problem immediately in the first instance can minimise financial expenditure on the employer’s behalf. Additionally, the sooner the problem can be resolved, the sooner the employer can focus on business operations with (or without) the employee, depending on the matter.
Understand that in employment law, when a personal grievance is raised by an employee it is normal for them to not only claim to be compensated for any loss they may have sustained (e.g. lost wages) but additionally, they will most likely seek further compensation for hurt and humiliation (under section 123(1)(c)(i) of the Employment Relations Act). The amount sought in such a claim varies on a case-by-case basis.
The above is a summary of what to expect as an employer if an employee raises a personal grievance against you. Of course, the best defence to personal grievance matters as an employer is avoiding them altogether! The following points should be considered as an employer when handling employment matters with your staff in order to minimise the chance of your employees raising a personal grievance:
The rules surrounding employment law and your duties as an employer are not limited to provisions in the Employment Relations Act. Other notable legislation includes the Holidays Act 2003 and the Health and Safety at Work Act 2015. Staying within the paradigms of your requirements as an employer is key to avoiding personal grievance claims.
A large number of personal grievance claims stem back to a breach of employment agreement clauses. This could include factors such as not providing the minimum hours stipulated in the agreement, not compensating the employee for overtime, requesting the employee to perform duties beyond their job description etc. Employers need to take a diligent approach to ensuring that they are managing their employees in a fair and reasonable manner and meeting employment agreement requirements in both a contractual and statutory manner.
Communication is key! If an employee raises concerns with you about the workplace or perhaps even their personal life, your role as an employer is to act in good faith and provide the necessary support when required.
An employee does not have unlimited time to raise a personal grievance against their employer. The Employment Relations Act requires all employees to raise a personal grievance with their employer within a period of 90 days. This 90-day period begins on the date on which the alleged action that caused the grievance occurred.
A common misconception held by employers is that an employee cannot raise a personal grievance against their employer if they are subject to a trial period during their employment. This is only partly true. If an employee is under a valid trial period during their employment tenure, then they cannot raise a personal grievance for unjustified dismissal against their employer. However, the employee may still bring a personal grievance for other issues (e.g. matters relating to an unjustified disadvantage).
There are other useful sources you can utilise if you cannot negotiate or settle a personal grievance with your employee. The Ministry of Business, Innovation and Employment (MBIE) provides a free mediation service. This is a voluntary/optional service that involves negotiating your employment matter with an MBIE mediator in attendance. A mediator acts as a neutral party and can provide recommendations to both parties (they are not able to force either party to do anything).
If an employer and an employee cannot settle the matter between themselves and have exhausted all other options, the next step involves an application being made to the Employment Relations Authority (ERA). An ERA hearing involves both parties presenting their case to an ERA member who, unlike MBIE mediators, can make legal orders/directions for parties to follow. Unlike MBIE mediation, an ERA hearing is not a free service and can result in expenses depending on the outcome of the hearing.
Just remember, we are here to help! Should you require support to firm up your business practices to safeguard against personal grievances or have one come up, do not hesitate to call the Restaurant Association Helpline team on 0800 737 827 for further advice. Our legally trained helpline are experts in personal grievances and help members deal with them on a regular basis, including representing them in mediation or with the ERA.
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