What is a Personal Grievance
The Employment Relations 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
- sexual harassment (by someone in authority or by co-workers)
- racial harassment
- duress over membership of a union or other employee organisation.
- having regard to the resources available, sufficiently investigate the allegations against the employee
- raise his or her concerns with the employee
- give the employee a reasonable opportunity to respond to those concerns genuinely consider the employee’s explanation (if any) in relation to the allegations
An employee has a right to raise a personal grievance case under the Employment Relations Act 2000. This must be done within 90 days of when the grievance occurred or came to his or her attention. However, the employer may consent to a personal grievance being raised after that time. If the employer doesn’t consent the employee may apply to the Employment Relations Authority to be allowed to raise the personal grievance after the 90 day period.
As noted above, 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 personal grievance was about discrimination or harassment.
Process
In all cases, the parties should seek to first resolve the matter at the workplace level. Both the employee and the employer may wish to seek advice on how to deal with the specifics of the case.
If a problem can’t be resolved, parties can go to mediation, either through the Department of Labour’s mediation services or through independent mediators. If this does not resolve the problem, employers or employees can go to the Employment Relations Authority for a determination. If either party is dissatisfied with the determination of the Employment Relations Authority, the issue can be taken to the Employment Court.
The Employment Relations Authority or Court must consider the test of justification which assesses the fairness of an employer’s decision in relation to disciplinary action. For instance, before dismissing or taking action against the employee, did the employer:
An employer’s action cannot be viewed as unjustified solely because of mistakes made in the prescribed process, if those were minor, and they did not result in the probability of the employee being treated unfairly.
Information reproduced and can be found at www.dol.govt.nz
