What is a Personal Grievance?
A personal grievance is a complaint an employee may have against their employer relating to their employment. An employee has a right to pursue a personal grievance in respect of certain actions by their employer [Source: Employment Relations Act 2000, s 103(1)].
Grounds for a Personal Grievance
The grounds for a personal grievance include:
- Unjustifiable dismissal: When an employee's dismissal was not what a fair and reasonable employer could have done in all the circumstances at the time the dismissal occurred [Source: Employment Relations Act 2000, s 103(1)(a)].
- Unjustifiable disadvantage: An action by an employer that negatively affects an employee's employment, where a fair and reasonable employer could not have acted in the same way [Source: Employment Relations Act 2000, s 103(1)(b)].
- Discrimination: Being treated unfairly due to prohibited grounds like age, sex, race, or disability [Source: Employment Relations Act 2000, s 103(1)(c); Human Rights Act 1993, s 21].
- Sexual harassment: Unwelcome or offensive sexual behaviour [Source: Employment Relations Act 2000, s 103(1)(d)].
- Racial harassment: Offensive or unwelcome behaviour based on race [Source: Employment Relations Act 2000, s 103(1)(da)].
- Duress: Undue pressure applied by the employer regarding membership or non-membership of an employee organisation [Source: Employment Relations Act 2000, s 103(1)(e)].
- Retaliation: Being treated adversely for exercising rights under the Act, such as raising health and safety concerns [Source: Employment Relations Act 2000, s 103(1)(f)].
Timeframes for Raising a Personal Grievance
A personal grievance must generally be raised with the employer within 90 days of the date on which the action giving rise to the grievance occurred or came to the notice of the employee, whichever is later [Source: Employment Relations Act 2000, s 114(1)].
In exceptional circumstances, the Employment Relations Authority (ERA) may grant an extension to this 90-day period if it considers it just to do so [Source: Employment Relations Act 2000, s 114(3)]. For claims of sexual harassment, the grievance may be raised after the 90-day period if there was a delay in seeking advice or taking action due to the nature of the harassment [Source: Employment Relations Act 2000, s 115(3)].
How to Raise a Personal Grievance
The law encourages good faith in employment relationships, which includes open and frank discussions between employers and employees [Source: Employment Relations Act 2000, s 4]. A personal grievance is raised by the employee notifying the employer (or a representative of the employer) about the grievance [Source: Employment Relations Act 2000, s 115(1)]. This notification must inform the employer about the nature of the grievance and the remedy sought [Source: Employment Relations Act 2000, s 115(1)]. While there is no specific format required for raising a personal grievance, it is advisable for an employee to do so in writing to ensure a clear record.
Mediation
If a personal grievance cannot be resolved directly between the employee and employer, either party can seek assistance from the Ministry of Business, Innovation and Employment (MBIE) to arrange mediation. Mediation is a voluntary and confidential process where an independent third party, a mediator, helps the parties discuss the issues and reach a mutually acceptable resolution [Source: Employment Relations Act 2000, s 135(1), s 136, s 140]. A mediated settlement, once signed by the parties and the mediator, is generally final and binding and can be enforced as if it were an order of the Employment Relations Authority [Source: Employment Relations Act 2000, s 146].
Employment Relations Authority (ERA)
If mediation is unsuccessful or not pursued, an employee can apply to the Employment Relations Authority (ERA) to investigate and determine the personal grievance [Source: Employment Relations Act 2000, s 156(1)(e)]. The ERA is an independent body that investigates employment relationship problems and makes determinations based on the facts and the law [Source: Employment Relations Act 2000, s 157]. ERA proceedings are generally less formal than court proceedings, but the Authority has powers to compel attendance and evidence [Source: Employment Relations Act 2000, s 174]. An ERA determination is a legally binding decision [Source: Employment Relations Act 2000, s 179].
Employment Court
A party dissatisfied with an ERA determination may challenge it in the Employment Court [Source: Employment Relations Act 2000, s 179]. The Employment Court is a specialist court that hears challenges to ERA determinations and deals with other complex employment law matters [Source: Employment Relations Act 2000, s 189]. Challenges to ERA determinations are heard 'de novo', meaning the Court hears the case again from the beginning, considering the evidence presented [Source: Employment Relations Act 2000, s 193(2)]. Decisions of the Employment Court can be appealed to the Court of Appeal and, in some cases, the Supreme Court [Source: Employment Relations Act 2000, s 204, s 207].
Potential Remedies
If a personal grievance is upheld, the remedies that may be ordered include:
- Reinstatement: Returning the employee to their former position or a similar position [Source: Employment Relations Act 2000, s 123(1)(a)].
- Reimbursement: Payment for wages or other money lost as a result of the grievance, up to a maximum of three months' gross earnings [Source: Employment Relations Act 2000, s 123(1)(b)].
- Compensation: For humiliation, loss of dignity, and injury to feelings [Source: Employment Relations Act 2000, s 123(1)(c)(i)].
- Compensation: For loss of any benefit (financial or otherwise) that the employee might reasonably have been expected to obtain if the personal grievance had not arisen [Source: Employment Relations Act 2000, s 123(1)(c)(ii)].
When to Seek Independent Legal Advice
Individuals dealing with employment relationship problems, such as potential personal grievances, are encouraged to seek independent legal advice. This information is general and does not constitute advice on specific circumstances. The Ministry of Business, Innovation and Employment (MBIE) provides free mediation services for employment disputes. Further assistance can be obtained from Community Law Centres or a qualified legal professional.