Opinion & Analysis
OPINION: It is not too hard to picture an employee who has been dismissed storming out of the office yelling: "I am bringing a personal grievance - see you in court".
Sounds very Boston Legal, but it does sometimes happen. The question is, then, whether this type of proclamation is enough to validly raise a grievance under the Employment Relations Act.
On the face of it, raising a personal grievance sounds easy. In reality, there is more to getting it right than one would think.
The universal ability of employees in New Zealand to pursue a personal grievance over the way they have been treated in their employment was introduced by a National government in the early 1990s. How grievances are commenced has changed little since that time.
An employee has to "raise a personal grievance", which essentially means letting the employer know that they have a specific complaint to make about their employment.
Personal grievances can be made alleging unjustified dismissal, unjustified disadvantage, discrimination, and sexual and racial harassment.
Importantly, there is a time limit of 90 days in which to raise a personal grievance with an employer. This starts from the date of the event giving rise to the grievance, or when the employee became aware of the event, and is 90 calendar days - not business days.
Where the complaint is about conduct that is ongoing, as in some cases of sexual harassment or bullying, 90 days begins from the most recent occurrence of the inappropriate behaviour.
Essentially, raising a personal grievance requires the employee to notify the employer of their grievance in enough detail that the employer can respond.
Specific words do not need to used, nor does it need to be done in a particular format or through a particular medium. The employee can tell the employer verbally, write a letter, or send an email. What matters is the timing and the content - and this has been the subject of several cases before the Employment Relations Authority.
The recent case of Idea Services Ltd v Valerie Barker is an example. Barker was employed as a community service worker for Idea Services, an organisation that provides support to people with intellectual disabilities throughout New Zealand.
Issues arose with Barker's employment and, after a meeting with her manager, she was advised that she was being dismissed with two weeks' pay in lieu of notice.
At the meeting, her union representative tried to raise a personal grievance, saying, "We will be taking action for Ms Barker under s103 of the CEA Personal Grievance and also the Health and Safety in Employment Act."
The Employment Court considered that the words used by Barker's union representative were not enough to validly raise a personal grievance. The employer could not tell from what the representative said what Barker was complaining about in enough detail to enable it to respond.
After the meeting, Barker wrote to her employer advising that she was taking this opportunity to inform them that she would "be pursuing a personal grievance against yourself as Lakeland Branch, Community Service Manager".
The court again considered that this was not clear enough for the same reasons.
In an earlier case (Creedy v Commissioner of Police), the court held that it is not enough for an employee to say that they have a personal grievance, to refer to the particular section of the Employment Relations Act 2000, or to simply say that they consider they have been unjustifiably dismissed.
What matters is whether they have provided enough detail for the employer to respond with a view to resolving the grievance soon and informally.
The employer needs to know why the employee is complaining. For example, what exactly is it about the dismissal that they consider unjustified and why?
An employee who fails to raise a personal grievance within 90 days, or in enough detail, risks not being able to pursue their grievance. They lose their recourse to any remedy - no lost wages, no compensation for hurt and humiliation, and no possibility of reinstatement.
An employee may raise a grievance outside of the 90 days only with the consent of the employer, or where exceptional circumstances exist. Not having an employment agreement explaining the 90-day rule, as required by law, may be grounds for exceptional circumstances.
Exceptional circumstances may also exist where the employee has been so affected by the matter that they were unable to take action sooner. This is a very high standard to meet - it essentially requires the employee to show they were so incapacitated on each day of the 90-day period that they could not have taken steps to raise a grievance.
Another ground for exceptional circumstances is where the employee has made reasonable arrangements with a union representative or lawyer to raise the grievance on their behalf, and that person has failed to do so within the required time frame. Shameful as it is, this ground is most often successful.
Both employers and employees need to understand how the 90-day period for raising a grievance works. Employees need to make sure they provide enough information and get the grievance in within the 90-day period.
Conversely, employers should always check that any grievance raised is within the statutory time period and enough information is provided. If not, the claim may be thrown out before it starts.
- Susan Hornsby-Geluk is a partner at Chen Palmer, New Zealand public and employment law specialists.
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