As with any employment problem, employees who believe they have a personal grievance should follow the first steps for resolving employment relationship problems.
There are, however, some special requirements for dealing with personal grievances.
An employee who has been dismissed can only challenge this by taking a personal grievance. Employees cannot pursue a claim for wrongful dismissal under common law, as was possible under previous legislation.
From 1 March 2009, employers who employ 19 or fewer employees are able to employ new employees on a trial period of up to 90 calendar days with the employee’s agreement. If any employment relationship problem arises during the trial period, or if the employee is dismissed, the employee and the employer can access mediation services. The employee cannot pursue a personal grievance for unjustified dismissal during the trial period. The employee may pursue a personal grievance where issues such as discrimination or harassment arise.
Choice of procedure
In some situations, employees who believe they have a personal grievance may also be able to complain under the Human Rights Act.
This may happen, for example, when an employee believes they have been discriminated against, sexually harassed or racially harassed.
Employees must choose either to take a personal grievance through to the Authority or to take their claim under the Human Rights Commission [External Link].
They cannot use both procedures for the same complaint.
The process outlined below relates to taking a personal grievance to the Authority. If you would like to take a person grievance under the Human Rights Act, please see the Human Rights Commission.
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Raising a personal grievance with the employer
An employee must let the employer know about his or her grievance, and that they want something done about it, within 90 days of the action complained of, or the date they became aware of it, whichever is the later.
If the employer is not told about the grievance within 90 days, the employer need not consider it unless the Employment Relations Authority allows the employee to raise it after 90 days.
The Authority will only allow that if it accepts that the delay was caused by exceptional circumstances. Exceptional circumstances include situations where:
- the employee was so affected or traumatised by the action complained of that he or she was unable to consider raising the grievance in time
- the employee made reasonable arrangements with an agent to raise the grievance on the employee's behalf, but the employee's agent unreasonably failed to do so in time
- the employee's employment agreement does not contain a plain language explanation of services available to help sort out employment relations problems
- the employer has failed to respond to an employee's request to give the employee a written statement of the reasons for the dismissal (see below).
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Employer's reasons for dismissal
An employee who has been dismissed may ask the employer for a written statement setting out the reasons for the dismissal. They must do this within 60 days after the dismissal or after the date they became aware of it, whichever is later.
The employer must give the statement to the employee within 14 days after being asked. This information may be important in later efforts to resolve the problem. Also, if the employer does not provide this statement, the employee will be able to raise a personal grievance after the 90-day period.
The employer does not have to provide a written statement of the reasons for dismissal if an employee is on a trial period and is given notice of dismissal during the trial period.
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Three-year limitation period on personal grievances
Employees may not start a personal grievance action in the Employment Relations Authority or the Employment Court more than three years after they have raised it with the employer.
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Remedies for personal grievances
An employee with a grievance claim may ask the employer for any remedy the employee thinks appropriate. If the grievance goes to the Employment Relations Authority, the following types of remedy can be asked for.
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Reinstatement
The Authority may order that an employee be put back in his or her previous position or a similar one that is not worse for the employee.
If the personal grievance is found to be valid and the employee asks for reinstatement, the Authority must order it if it is practicable.
The employer must carry out the Authority's decision, even if the decision is under appeal, unless the Authority or the Court orders otherwise.
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Interim reinstatement
The Authority can order the employee to be reinstated until the personal grievance is heard, if the employee asks for this. The Authority may impose conditions when ordering reinstatement.
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Reimbursement
If an employee has lost wages or other money as a result of the grievance, the Employment Relations Authority can order the employer to pay all or part of the lost amount. Unless the Authority thinks that the employee was partly responsible or their conduct contributed , it must order the employer to pay at least all lost money up to three months' ordinary time wages, and may award more.
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Compensation
The Authority may order the employer to pay money to the employee for:
- any effects on the employee personally, such as humiliation, loss of dignity or injury to his or her feelings
- the loss of any benefit which the employee might reasonably have expected if the grievance had not arisen.
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Recommendations in cases of sexual or racial harassment
When an employee has been sexually or racially harassed, the Authority may make recommendations to the employer on what to do about the harasser. This may include transfer, disciplinary action, or helping to change his or her behaviour to prevent them harassing again. The Authority can also recommend any other action to prevent further harassment of the employee or any other employee; for example, that the employer develop and implement an educational programme in the workplace or adopt a formal harassment policy.
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Contributory fault
The Authority must reduce the remedies if the employee is found to be partly at fault in a grievance case.
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This page was last updated on:
10-Nov-2009
and is current.
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