NB: Grievances are stressful
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I received an email recently from a reader of the column: "I may well have missed it, but have you written about the hurdles people have to go through in taking an employment grievance? Like the cost in time, stress, not to mention the legal fees?"
The reader was concerned that someone "near and dear" to her may have got a too-rosy impression of the process through the occasional read of my column and seeing the settlements people got. I think this is a very valid question to ask.
There is no doubt that employees face a battle if they take on a large, well-funded employer or a belligerent one.
My experience is that most smaller employers (due to the fact that they are paying legal fees as well) are more likely to be reasonable if they have done something wrong and are more likely (except of course if they are not getting the right legal advice) to move things on and try to settle them.
It is fair to say, however, that if an employee is facing either an employer who is belligerently against settling the matter or the employer is a large organisation and the grievance is being dealt with by a manager who is not personally footing the legal bill then it can be much more difficult.
It is important to realise that the cases that I sometimes refer to in this column are a small percentage of employment disputes. The vast majority of cases that I deal with are settled either at mediation or before mediation.
All personal grievances must go to mediation before they go to a hearing before the Employment Relations Authority.
The mediation process is the most efficient and cost-effective way of addressing employment relationship problems.
Because mediation results in a negotiated settlement the amounts paid by an employer are likely to be less than what would be awarded at a hearing (if the employee is successful) but the upside is that it cuts out a significant cost - lawyers' fees - to go to hearing .
I also must point out (and this view is shared by some others in the profession) that while there may have been a period of time where it was considered that the Employment Relations Authority was "pro employee" I do not think that that is valid any more.
Increasingly, in my view, decisions are coming out of the authority that suggest that there has been more of a lean towards employers.
So to Concerned Reader, yes, taking an employment grievance right through to the Employment Relations Authority is a stressful, costly matter. That, however, should not put people off taking advice. As I said, the majority of matters can be settled (if a grievance has some validity) before the need to go to the Employment Relations Authority.
The best advice I can give is to use yet another analogy. I had a ganglion on my index finger and my husband helpfully suggested that if I hit it with a book end it would go away. I took this advice and bashed it repeatedly over a period of days, resulting in my finger blowing up and after two trips to the doctor where some sort of fluid has been sucked out of the finger (apparently it comes from the joint) my next option is surgery.
Was my husband wrong? Apparently not. According to my doctor, hitting ganglions can get rid of them.
Should I have taken my husband's advice? Probably not, in light of the fact that looking back the force applied when I was bashing said finger was clearly too great (yes, actually it did hurt). Step one (as I have learnt with medical problems) in an employment matter should be good advice. It is only after good advice that appropriate decisions can be made.
* Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. Email her at Mary-Jane.Thomas@prlaw.co.nz.
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