A personal grievance is one of the main ways for workers to take a legal claim against their employer if they believe their employer has acted unfairly or unreasonably towards them.
If your employer has taken an action or made a decision that is not what a fair and reasonable employer could have done given all of the circumstances, then it is likely you have a personal grievance.
You can use the personal grievance process if your employer has fired ("dismissed") you unfairly or done something else you think is unjustified, such as unfairly or unreasonably putting you off work ("suspending" you), giving you a written warning, or giving you a lesser job ("demoting" you). A personal grievance is also available on certain other grounds, like discrimination and sexual harassment.
Step 1: You must first raise the issue with your employer within ninety (90) days from when the issue that caused the grievance occurred.
Step 2: If you are not satisfied with the employer's response, a free mediation service is available through the Ministry of Business, Innovation and Employment (MBIE).
Step 3: If mediation does not resolve the matter, you can take your grievance to the Employment Relations Authority (ERA).
Step 4: If you view the Employment Relations Authority (ERA) decision as unfair, you may take the matter further to the Employment Court.
If you have already communicated your concerns to your employer, you may have already raised a personal grievance. The Employment Relations Authority (ERA) recently confirmed the key principles for establishing whether a grievance has been raised pursuant to section 114(2) of the Employment Relations Act 2000.
In Chandra v Invocare New Zealand Limited [2023] NZERA 532, Employment Relations Authority (ERA) Member Sarah Blick summarised the key principles:
These principles are well-supported by a significant body of case law, including:
You raise a personal grievance by making your employer, or a manager or supervisor, aware that you believe you have a personal grievance and that you want the employer to address it. This could be by approaching the employer directly or by writing them a letter or email.
Although you can raise a grievance verbally, it is better to raise it in writing by letter or email so that you have a record of all the details. You should give enough details about the problem for the employer to respond to, and keep a copy for yourself. If you do raise the grievance verbally, take notes of what you and your employer said — you can use these notes later at mediation or the hearing.
Yes. You must raise the personal grievance with your employer within ninety (90) days after the action that led to the personal grievance, or within ninety (90) days after you became aware of the action, whichever is later.
You can raise a personal grievance after the 90-day period only if your employer agrees to this or if the Employment Relations Authority (ERA) allows it. The Employment Relations Authority (ERA) will only allow this if there are exceptional circumstances and it would be "just" to allow it.
Workers are constantly subjected to unfair dismissal processes. There is a long and extensive history of these cases in New Zealand employment law.
A dismissal has a well-established definition in the case law. The Court of Appeal in E N Ramsbottom Ltd v Chambers [2000] NZCA 183 and the Employment Court in Ngawharau v Porirua Whanau Centre Trust [2015] NZEmpC 89 have affirmed the definition of dismissal as:
"Termination of the employment relationship at the initiative of the employer."
This definition applies to dismissals on notice, summary dismissals, constructive dismissals, and other forms of dismissal where the situation is not considered a redundancy.
In Cornish Truck & Van Limited v Gildenhuys [2019] NZEmpC 6, the Employment Court provided that the test for deciding or determining whether an employer's actions constituted a dismissal is an objective measure. The question to be answered is:
"Was it reasonable for the employer, or someone in the position of an employer, to consider the employment had been terminated?"
In Concrete Structures (NZ) Limited v Ward [2020] NZEmpC 219, the Employment Court further provided that this objective test:
"...logically leaves room for a finding that dismissal occurred even if the employee did not subjectively believe it to be so."
"It also logically leaves room for finding that a dismissal occurred even if the employer did not subjectively believe it to be so, and by extension, where neither the employee nor the employer subjectively believed dismissal had occurred."
The Court explained that circumstances may arise where a party effected a change in the relationship, or where the relationship was concluded for whatever reason, could subjectively miss what any reasonable person would observe objectively as being a dismissal. The question then becomes: Was that dismissal justified?
No. An employer cannot impose a resignation upon an employee.
In Furze v Harley Interior Plasterers Ltd [2016] NZERA 200, the Employment Relations Authority (ERA) addressed this directly:
"A common misunderstanding amongst employers [is] that they can treat someone as having quit their job when the employee fails to do something they are told to do. An employer cannot impose a resignation upon an employee, or characterise the employment as having ended by resignation when the employee does not actively resign. The imposition of the condition (do X, or you will be deemed to have quit) is actually a dismissal."
If you are being told "do your job or I will fire you" for refusing to do duties you are not trained for, that are unsafe, or that are not compliant with the law, this happens all the time and it is totally unlawful. Get representation immediately.
No. Definitely not. But some circumstances can be confusing when tempers flare.
In New Zealand Cards Limited v Ramsay [2012] NZEmpC 51, the Employment Court addressed situations where communication is ambiguous:
"Where the communication is equivocal, the employer learns that the employee has misunderstood it as a dismissal contrary to the employer's intention but does nothing within a reasonable time frame to correct the employee's false impression. In such a case the employer must suffer the adverse consequences of passively standing by and letting the employee think that a dismissal has taken place."
Picture this: You are going through an employment process, the employer does not get back to you. You are on suspension, the employer cuts you off with no communication and you are left to assume that the employer has fired you. This likely means you have been unfairly dismissed.
The good faith obligations mean parties must remain open and communicative. It is an employment relationship after all. But going into one of these processes without representation means that your employer will dominate the communication in their favour.
The concept of "unjustified" or "unjustifiable" is a cornerstone in employment law. Understanding this concept and how it applies to your situation is exactly why representation is essential.
In Auckland City Council v Hennessey [1982] NZCA 17, the Court of Appeal provided:
"Its integral feature is the word unjust — that is to say not in accordance with justice or fairness. A course of action is unjustifiable when that which is done cannot be shown to be in accord with justice or fairness."
In Wellington Road Transport Union of Workers v Fletcher Construction Company Ltd [1982] NZCA 24, the Court of Appeal provided that unjust was:
"...unfair, without due cause, unreasonable, improper, unwarranted, or arbitrary."
Wellington Road Transport Union of Workers v Fletcher Construction Company Ltd [1982] NZCA 24
In Telecom South Ltd v Post Office Union (Inc) [1991] NZCA 563, the Court of Appeal provided:
"A dismissal is unjustifiable if it is not capable of being shown to be just in all the circumstances."
What is justifiable is considered on the basis of moral justice. There is also a test of the balance of interests of both the employer and the employee in these circumstances which must be carefully addressed. Far too many employers make mistakes in this realm, leaving workers subject to unjust processes at an alarmingly high rate in Aotearoa New Zealand.
This case law is now codified in section 103A of the Employment Relations Act 2000, which provides:
"The test is 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."
The Employment Relations Act 2000 also provides that for a dismissal or action to be justifiable, the employer must consider:
If any of the above is not happening in any employment process or experience you are involved in, you should contact us now. It is likely that you are being subjected to an unfair and unreasonable employment situation.
It is really important to get the grievance down in writing wherever possible, and with enough specificity as possible to ensure the grievance can be addressed.
It is also important to ensure that these communications are held safely outside of the workplace and accessible for any matter that arises at a later time.
So it may be that you have already raised a personal grievance, and now you are considering what your next steps are.
If you or someone you know is considering raising a personal grievance, has likely already raised a personal grievance, or is ending employment because of circumstances that are a likely personal grievance and does not have a representative, then any delay in seeking the right advice can hurt any chances when it comes to any future outcomes.
Working for Workers is happy to assist in engaging in the grievance process and in raising personal grievances pursuant to your employment.
Working for Workers understands that it is hard to trust anyone when it comes to raising matters of employment, and that there is much to risk in challenging the place where you spend all of your time and earn all of your income: your employment.
Often, the experience of raising grievances and trying to resolve matters can be stressful and you often feel alone without representation or guidance.
Working for Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your rights observed and your position protected in any future process.
Please contact us today to discuss the matter and start turning things around for you.
Contact us today