Personal Grievances

A personal grievance is a formal legal complaint that an employee can make against their employer for specific types of unfair treatment defined in the Employment Relations Act 2000. It's not just any workplace dispute - personal grievances cover particular situations where an employer has breached their legal obligations or treated an employee unfairly.

The most common types of personal grievances include unfair dismissal, where an employee is fired without proper justification or process, and discrimination based on prohibited grounds like gender, age, or disability. Other grounds include harassment, including sexual harassment, and situations where an employer has failed to comply with employment law requirements.

Personal grievances also cover constructive dismissal, where working conditions become so intolerable that an employee is forced to resign, and cases where an employer has breached the duty of good faith. The key distinction is that personal grievances must fall within these specific legal categories - general workplace dissatisfaction or personality conflicts typically don't qualify unless they involve discrimination or harassment.

Unfair dismissal is the most common type of personal grievance, occurring when an employer terminates employment without proper justification or fails to follow fair procedures. This includes dismissals for reasons that aren't work-related, dismissals without adequate investigation, or where the punishment doesn't fit the alleged misconduct.

Discrimination grievances arise when employees are treated unfairly because of prohibited characteristics such as sex, race, age, disability, sexual orientation, or family status. This can include being passed over for promotion, receiving different treatment in terms and conditions, or facing a hostile work environment because of these characteristics.

Harassment grievances cover unwelcome behaviour that creates an intimidating, hostile, or offensive work environment. This includes workplace bullying, sexual harassment, and other forms of inappropriate conduct that affect an employee's ability to do their job. The behaviour must be serious enough to have a detrimental effect on the employee's employment, job performance, or job satisfaction.

Other types include disadvantage grievances, where an employee suffers negative consequences for exercising their employment rights, and duress grievances, where an employee is pressured to accept changes to their employment terms under threat.

The 90-day deadline for raising personal grievances is one of the most important aspects of employment law that employees often overlook. This deadline runs from when the action that gave rise to the grievance occurred, or when you first became aware of it if it wasn't immediately apparent. Missing this deadline typically means losing your right to pursue the grievance entirely.

The deadline is calculated as 90 calendar days, not working days, and includes weekends and public holidays. For dismissals, the 90 days usually starts from your last day of work. For ongoing issues like harassment or discrimination, it can be more complex to determine when the clock starts ticking, which is why seeking legal advice early is crucial.

There are limited exceptions where the Employment Relations Authority might accept a late grievance, but these require exceptional circumstances such as serious illness, being overseas, or the employer actively misleading you about your rights. The Authority has discretion to extend the deadline, but this is rare and shouldn't be relied upon.

If you think you might have grounds for a personal grievance, it's essential to act quickly. Even if you're unsure whether your situation qualifies, getting legal advice within the 90-day window preserves your options and ensures you don't inadvertently forfeit your rights.

Before taking a personal grievance to the Employment Relations Authority, you must first raise it directly with your employer. This requirement gives employers an opportunity to resolve the matter internally and is a fundamental principle of New Zealand employment law. The grievance should be raised in writing, clearly stating what happened, why you believe it constitutes a personal grievance, and what outcome you're seeking.

Your grievance letter should be factual, professional, and specific about the events that occurred. Include dates, times, witnesses, and any relevant documentation. Avoid emotional language and stick to the facts. The letter should clearly identify which type of personal grievance you're raising and reference any relevant policies or legal obligations that were breached.

Once you've raised the grievance, your employer has a duty to investigate it properly and respond in good faith. They should acknowledge receipt of your grievance, conduct a fair investigation if necessary, and provide you with a substantive response within a reasonable timeframe. This process might involve meetings, interviews with witnesses, and reviewing relevant documents.

If your employer fails to respond appropriately, doesn't investigate properly, or rejects your grievance without proper consideration, you can then proceed to mediation through the Ministry of Business, Innovation and Employment, or directly to the Employment Relations Authority. Keep detailed records of all communications during this process as they may be important evidence later.

Strong evidence is crucial for a successful personal grievance claim. The burden of proof lies with you as the employee to demonstrate that the employer's actions were unjustified or procedurally unfair. This means gathering comprehensive documentation from the moment issues begin to arise in your workplace.

Key evidence includes written communications such as emails, text messages, and formal letters between you and your employer. Performance reviews, disciplinary records, and any written warnings are also important. If witnesses observed the behaviour or events in question, their written statements can be valuable, though getting colleagues to provide statements can sometimes be challenging due to workplace dynamics.

For harassment or discrimination cases, detailed records of incidents are essential. This includes dates, times, locations, what was said or done, who was present, and how it affected you. Photos of any physical evidence, such as offensive materials or unsafe working conditions, can also support your case. Medical records may be relevant if the employer's actions have affected your health.

Employment agreements, job descriptions, company policies, and employee handbooks help establish what standards and procedures should have been followed. If your employer failed to follow their own policies or legal requirements, this documentation proves what the correct process should have been. Keep copies of everything in a safe place outside of work, as you may lose access to company systems if your employment ends.

Mediation is often the next step if your employer doesn't resolve your personal grievance satisfactorily. It's a free service provided by the Ministry of Business, Innovation and Employment where an independent mediator helps both parties try to reach a mutually acceptable resolution. Mediation is confidential, voluntary, and less formal than going to the Employment Relations Authority.

The mediation process typically involves both parties meeting with a trained mediator who facilitates discussions aimed at finding a solution. The mediator doesn't make decisions or determine who's right or wrong - instead, they help both sides communicate effectively and explore possible resolutions. This might include compensation, changes to workplace practices, apologies, or other remedies.

One of the key advantages of mediation is that it allows for creative solutions that wouldn't be available through the Employment Relations Authority. For example, you might negotiate for a positive reference, additional training for managers, or changes to company policies. Mediation is also typically faster and less stressful than formal proceedings.

If mediation is successful, any agreement reached is put in writing and becomes legally binding. If mediation doesn't resolve the matter, you can still proceed to the Employment Relations Authority. The discussions and offers made during mediation generally can't be used as evidence in later proceedings, which encourages open and honest communication during the process.

If mediation doesn't resolve your personal grievance, you can take your case to the Employment Relations Authority (ERA). The ERA is a specialist tribunal that makes binding decisions on employment disputes. Unlike mediation, ERA proceedings are formal legal proceedings where evidence is presented and a determination is made based on the law and facts.

To bring a case to the ERA, you must file an application within 90 days of raising your grievance with your employer, or within 90 days of your employer's final response if they investigated the matter. The application must include details of your grievance, the remedy you're seeking, and supporting evidence. There's a filing fee, though this may be waived in cases of financial hardship.

The ERA process typically involves both parties filing statements of evidence, exchanging relevant documents, and attending a hearing where witnesses can be called and cross-examined. The Authority Member (similar to a judge) will ask questions and may request additional information. The process is less formal than a court but still follows legal procedures.

ERA determinations are legally binding and enforceable. The Authority can order various remedies including compensation for lost wages, hurt and humiliation payments, reinstatement to your job, or other appropriate remedies. If either party disagrees with the ERA's decision, they can appeal to the Employment Court, but this is a more complex and expensive process.

Personal grievance remedies are designed to put you back in the position you would have been in if the employer's actions hadn't occurred, and to compensate you for any harm suffered. The most common remedy is compensation, which can include several different components depending on your specific circumstances.

Lost wages compensation covers the income you've lost as a result of the employer's actions. For dismissal cases, this typically includes wages from the date of dismissal until the determination is made, minus any income you've earned elsewhere. The calculation can be complex, particularly if you've found new employment at different rates of pay or if there are questions about how long you would have remained in the job.

Hurt and humiliation awards compensate for the emotional distress and damage to dignity caused by the employer's actions. These awards typically range from $500 to $30,000, though exceptional cases can exceed this range. Factors considered include the severity of the employer's conduct, the impact on you personally and professionally, your length of service, and whether the employer showed any remorse or took steps to remedy the situation.

Other potential remedies include reinstatement to your job (though this is rare and only appropriate in certain circumstances), reimbursement of costs you've incurred as a result of the grievance, and orders requiring the employer to take specific actions such as providing training or changing policies. In some cases, the ERA may also order the employer to provide a positive reference or remove negative information from your personnel file.

While you can handle a personal grievance yourself, the complexity of employment law and the high stakes involved often make legal representation worthwhile. Consider getting legal advice as soon as you think you might have grounds for a personal grievance, ideally within the first few weeks of the incident occurring.

Legal help is particularly important if your case involves complex legal issues, significant amounts of money, or if your employer has engaged lawyers. Employment lawyers understand the nuances of personal grievance law, know how to present evidence effectively, and can help you avoid common pitfalls that might weaken your case. They can also provide realistic assessments of your chances of success and likely compensation amounts.

If you're still employed, a lawyer can help you navigate the process while protecting your ongoing employment relationship. They can advise on how to document issues properly, what to say in meetings with your employer, and how to protect yourself from potential retaliation. This guidance can be invaluable in preserving both your case and your job.

For cases proceeding to the Employment Relations Authority, legal representation becomes even more important. The ERA process involves formal legal procedures, rules of evidence, and complex legal arguments that can be difficult to navigate without experience. A lawyer can also help negotiate settlements at any stage of the process, often achieving better outcomes than you might obtain representing yourself.