How to Raise a Personal Grievance

A personal grievance is a formal legal process that allows employees to challenge specific types of unfair treatment by their employer. The Employment Relations Act 2000 provides five main grounds for personal grievances: unjustifiable dismissal, unjustifiable disadvantage, discrimination, sexual harassment, and duress.

Unjustifiable dismissal occurs when an employer terminates your employment without proper process or valid reasons. This includes situations where the employer fails to follow fair procedures, acts on insufficient evidence, or dismisses you for reasons that don't justify termination. Unfair dismissal cases often involve procedural failures or disproportionate responses to employee conduct.

Unjustifiable disadvantage covers situations where you're treated unfairly but not dismissed, such as demotion, reduction in hours, changes to working conditions, or bullying and harassment. This ground recognises that employees can suffer significant harm even when they remain employed.

Understanding which ground applies to your situation is crucial, as it affects the evidence you'll need to gather and the potential remedies available. Some situations may involve multiple grounds, such as dismissal following a period of harassment or discrimination.

The most important rule in personal grievance law is the 90-day deadline. You must raise your grievance within 90 days of the action you're complaining about, or within 90 days of when you first became aware of the action and its effects. This deadline is strictly enforced, and missing it usually means losing your right to pursue the grievance.

For dismissal cases, the 90 days typically runs from your last day of employment. For ongoing issues like harassment or discrimination, the deadline may run from when you first became aware that the behaviour was affecting you adversely. In complex situations involving multiple incidents, determining the correct start date for the 90-day period can be challenging.

Before the deadline expires, you need to conduct an initial assessment of your situation. Consider whether you have a valid grievance ground, what evidence you can gather, and whether the potential outcomes justify the time, stress, and costs involved. This assessment should include reviewing your employment agreement, company policies, and any relevant correspondence.

If you're approaching the 90-day deadline, don't delay seeking legal advice. Even if you're unsure about proceeding, raising the grievance preserves your rights while you gather more information and consider your options. You can always withdraw a grievance later, but you cannot raise one after the deadline has passed.

Strong evidence is the foundation of any successful personal grievance. Start gathering evidence immediately, as documents can disappear and memories fade over time. The type of evidence you need depends on your grievance ground, but generally includes written communications, witness statements, and records of relevant incidents.

Email correspondence is often crucial evidence, particularly exchanges with your manager or HR department that show the employer's reasoning, attitude, or process failures. Save all relevant emails, including those that might seem minor, as they can provide important context. Don't forget to check your sent items folder, as your own responses can demonstrate your professionalism and good faith efforts to resolve issues.

Document all incidents related to your grievance with detailed notes including dates, times, locations, people present, and exactly what was said or done. Contemporary notes made at the time of incidents carry more weight than recollections created later. If you haven't been keeping notes, start immediately and record what you can remember about past incidents.

Witness statements from colleagues who observed relevant incidents or can speak to your work performance and character can be valuable. However, be sensitive to the fact that colleagues may be reluctant to get involved due to concerns about their own job security. Approach potential witnesses carefully and respect their decision if they prefer not to participate.

Keep records of any financial losses resulting from the grievance situation, including lost wages, medical expenses, or costs incurred in seeking alternative employment. If you've suffered stress or health impacts, medical records and reports from healthcare providers can support claims for compensation.

Raising a personal grievance involves specific procedural steps that must be followed correctly. The process typically begins with providing written notice to your employer that you wish to raise a personal grievance. This notice should clearly identify the grievance ground, provide sufficient detail about the issues, and request a meeting to discuss resolution.

Your grievance notice doesn't need to be lengthy or legally complex, but it should be clear and specific enough for your employer to understand what you're complaining about. Include key dates, the names of people involved, and a brief description of how the employer's actions have affected you. Avoid emotional language and stick to factual descriptions of events.

Once you've raised the grievance, your employer has an obligation to respond and engage in the process in good faith. This typically involves acknowledging receipt of your grievance, conducting any necessary investigation, and meeting with you to discuss the issues and potential resolution. The employer should respond within a reasonable timeframe, usually 10-14 days.

During grievance meetings, both parties should approach discussions constructively with a genuine desire to resolve the issues. You have the right to bring a support person or representative to these meetings. Take detailed notes of what's discussed and follow up important points in writing to create a clear record of the process.

If the employer's response is unsatisfactory or they fail to engage properly, you can proceed to mediation through the Ministry of Business, Innovation and Employment. Mediation is a free, confidential process where an independent mediator helps both parties work towards a resolution.

If direct discussions with your employer don't resolve your grievance, the next step is usually mediation. This is a voluntary process where an independent mediator helps both parties explore options for resolution. Mediation is confidential, free, and often more flexible than formal legal proceedings.

Preparing for mediation involves organising your evidence, clarifying your desired outcomes, and considering what compromises you might accept. Think about both financial and non-financial remedies you're seeking, such as compensation, reinstatement, changes to workplace policies, or simply an acknowledgment of wrongdoing.

During mediation, the mediator will typically meet with both parties separately and together to explore the issues and potential solutions. The mediator doesn't make decisions but helps facilitate discussions and identify common ground. Be prepared to explain your position clearly and listen to the employer's perspective, even if you disagree with it.

Many personal grievances are resolved through mediation, often through negotiated settlements that provide compensation and other agreed outcomes. Settlement agreements reached in mediation are legally binding and typically include confidentiality clauses.

If mediation doesn't resolve the grievance, you can proceed to the Employment Relations Authority, which has the power to make binding decisions and award remedies. However, this involves more formal procedures, longer timeframes, and potentially higher costs and risks.

If mediation fails to resolve your grievance, you can take your case to the Employment Relations Authority (ERA). This is a more formal process where an Authority member (similar to a judge) hears evidence from both sides and makes a binding decision on your grievance.

The ERA process involves filing a statement of problem, which sets out your case in detail, followed by the employer's statement in reply. Both parties then have opportunities to file evidence, including witness statements and supporting documents. The process culminates in an investigation meeting (similar to a court hearing) where both sides present their cases.

Preparing for the ERA requires careful organisation of your evidence and legal arguments. You'll need to prove your case on the balance of probabilities, which means showing that your version of events is more likely to be true than the employer's version. This requires strong evidence and clear presentation of your arguments.

The ERA can award various remedies if your grievance is successful, including compensation for lost wages, compensation for humiliation and distress, and orders for reinstatement or other actions. However, the ERA can also award costs against unsuccessful parties, which creates financial risks if your case fails.

Most people benefit from legal representation at the ERA level, as the process involves complex legal and procedural requirements. Preparing for ERA proceedings requires understanding the rules of evidence, legal precedents, and procedural requirements that can significantly impact the outcome of your case.

Understanding the potential outcomes of a personal grievance helps you make informed decisions about whether to proceed and what settlement offers to consider. The remedies available depend on your grievance ground and the specific circumstances of your case.

For unjustifiable dismissal cases, the primary remedies are reinstatement (getting your job back) and compensation for lost wages from dismissal until resolution. Reinstatement is often impractical due to breakdown in the employment relationship, so most successful dismissal cases result in compensation payments instead.

Compensation for humiliation, loss of dignity, and injury to feelings is available for all types of personal grievances. This compensation recognises the emotional and psychological impact of the employer's actions. Awards typically range from $5,000 to $25,000, though they can be higher in serious cases involving significant harm.

Lost wages compensation covers the income you would have earned if the grievance situation hadn't occurred. This includes salary, bonuses, commissions, and the value of lost benefits like KiwiSaver contributions or health insurance. The calculation period depends on how long it takes to find alternative employment or resolve the grievance.

Other potential remedies include orders requiring the employer to change policies or procedures, provide training, or take other corrective actions. In some cases, you might seek a reference letter or agreement that the employer won't provide negative references to future employers.

It's important to have realistic expectations about potential outcomes. Employment compensation calculations involve complex factors, and successful grievances don't always result in large financial awards. Consider both the financial and non-financial benefits of pursuing your grievance.

Deciding when to engage legal representation is crucial for personal grievance success. While you can represent yourself throughout the process, employment law is complex and mistakes can be costly. Early legal advice can help you assess your case strength, understand your options, and avoid procedural errors.

Consider seeking legal advice immediately if your situation involves complex legal issues, significant financial stakes, or if your employer has engaged lawyers. Getting a lawyer for employment issues early can prevent mistakes that might weaken your case later.

Many employment lawyers offer initial consultations to assess your case and explain your options. This can help you understand the strength of your grievance, potential outcomes, and likely costs before committing to formal proceedings. Some lawyers work on contingency arrangements or offer fixed-fee services for specific aspects of the process.

Legal representation becomes increasingly important as your case progresses through the formal system. While you might handle initial discussions with your employer yourself, mediation and ERA proceedings often benefit from professional representation. Lawyers understand the procedural requirements, legal precedents, and strategic considerations that can significantly impact outcomes.

Even if you choose to represent yourself initially, consider getting legal advice at key decision points, such as when evaluating settlement offers or deciding whether to proceed to the ERA. Professional guidance at these crucial moments can help you make informed decisions about your case.