What is a personal grievance?
The Employment Relations Act 2000 (the Act} gives all employees the right to pursue a personal grievance if they have any of the following complaints:
- Unjustifiable dismissal.
- Unjustifiable action which disadvantages the employee.
- Discrimination by their employer.
- Sexual harassment.
- Racial harassment.
- Duress over membership of a union or other employee organisation.
Unfair treatment:
- for refusing to work in certain circumstances.
- due to being affected by family violence.
- after making a protected disclosure of information.
Non-compliance with the provisions relating to protected employees in relation to restructuring.
Health and safety concerns.
Disadvantaged due to the employment agreement not meeting legal requirements for:
- agreed hours of work.
- availability provisions.
- reasonable notice and compensation for shift cancellations.
- secondary employment provisions.
Breach of protected employment provisions in relation to Reserve Forces service / training or attending jury service.
Being compelled as a shop employee to work on Easter Sunday or treated adversely for refusing to do so.
How is a personal grievance raised?
For a personal grievance in respect of sexual harassment, the employee must present that grievance within a 12-month period of the event giving rise to the grievance.
For any other type of personal grievance, the employee must present that grievance within 90 days of the event giving rise to the grievance.
The employee should clearly state what their complaint is and the reasons why they believe they have a personal grievance.
If the employee has been given notice of dismissal during a trial period, a personal grievance may not be raised for unjustified dismissal unless the trial period is not valid. Keep in mind, however, that an employee on a trial period may still raise a personal grievance in respect of an unjustified disadvantage or discrimination.
Raising a personal grievance claim after the employee notification period
If the employer agrees, the employee can raise a personal grievance after the relevant time limit of either 90 days or 12 months. If the employer does not agree, the employee can ask the Employment Relations Authority to decide if they can still raise a personal grievance. The employee can only do this if they can prove the delay was due to exceptional circumstances.
What is the process?
In all cases, the parties should seek to first resolve the matter themselves. Both the employee and the employer may wish to seek advice on how to deal with the specifics of the case.
If a problem cannot be resolved, parties can voluntarily attend mediation, either through government mediation services or through independent mediators. If this does not resolve the problem, employers or employees can lodge a claim with the Employment Relations Authority for a determination.
If either party is dissatisfied with the determination of the Employment Relations Authority, the issue can be appealed to the Employment Court.
What are some potential remedies?
The Employment Relations Authority may provide the following remedies to employees who are successful in their personal grievance claim:
- Reinstatement
- Reimbursement of lost wages
- Compensation for humiliation, loss of dignity and injury to feelings
- Compensation for loss of a monetary or non-monetary benefit
- Representative costs
In addition, the employer may be subject to penalties for breaching employment laws.
Managing employment relations with Peninsula
Managing a personal grievance can be complicated and taxing for employers. Peninsula has worked with thousands of businesses and employers in New Zealand, supporting them in employment relations and workplace health and safety. For expert advice, contact the Peninsula team today.