Workplace Retaliation or Reprisal

Workplace retaliation is any adverse action taken by an employer against an employee because they engaged in protected activity. Protected activities include making complaints about discrimination, harassment, health and safety issues, wage and hour violations, or other workplace problems that employees have a legal right to report.

The key element in retaliation cases is the causal connection between the protected activity and the adverse action. This means the employer's decision to take negative action against you must be motivated, at least in part, by your complaint or protected activity. The timing of events often provides crucial evidence - retaliation frequently occurs shortly after an employee raises concerns.

Retaliation doesn't have to be immediate or direct. Employers might wait weeks or months before taking action, or they might retaliate indirectly by creating conditions that make your job unbearable. Understanding these patterns is essential for recognising when you're being targeted and taking appropriate action to protect your rights.

Workplace retaliation can manifest in numerous ways, ranging from obvious punitive actions to subtle changes in treatment that create a hostile work environment. Direct forms of retaliation include dismissal, demotion, reduction in hours or pay, transfer to less desirable positions, or denial of promotions or benefits that would normally be available.

More subtle forms of retaliation can be equally damaging but harder to prove. These might include exclusion from meetings or important communications, increased scrutiny of your work, unreasonable performance expectations, social isolation by management or colleagues, or sudden negative performance reviews that don't reflect your actual work quality.

Some employers engage in constructive dismissal through retaliation, making working conditions so intolerable that employees feel forced to resign. This might involve assigning meaningless tasks, removing responsibilities, relocating your workspace, or creating an atmosphere of hostility. Recognising these patterns early is crucial for building a strong case and protecting your career.

New Zealand employment law provides strong protections against workplace retaliation through various statutes and common law principles. The Employment Relations Act 2000 prohibits employers from taking adverse action against employees who raise personal grievances or participate in employment-related proceedings.

The Human Rights Act 1993 specifically protects employees from retaliation for making complaints about discrimination or harassment. Similarly, the Health and Safety at Work Act 2015 prohibits employers from taking adverse action against workers who raise health and safety concerns or refuse to perform unsafe work.

These protections extend beyond just making formal complaints. You're also protected for participating in investigations, providing information to government agencies, or supporting colleagues who have raised legitimate concerns. The law recognises that effective workplace protections require employees to feel safe when reporting problems or exercising their rights.

If retaliation occurs, you may have grounds for a personal grievance claim, which can result in remedies including reinstatement, compensation for lost wages, compensation for humiliation and distress, and orders requiring the employer to stop the retaliatory behaviour.

Thorough documentation is crucial for proving workplace retaliation, as these cases often come down to your word against your employer's. Start documenting from the moment you raise concerns, not just when retaliation begins. Keep detailed records of your original complaint, including when, how, and to whom you made it.

Document every instance of changed treatment, no matter how minor it might seem. Record dates, times, locations, witnesses present, and exactly what was said or done. Save all relevant emails, text messages, and written communications. Take notes immediately after verbal interactions while the details are fresh in your memory.

Compare your treatment before and after making your complaint. Gather evidence of your previous good standing, such as positive performance reviews, commendations, or examples of normal workplace interactions. This contrast helps establish that the changed treatment is connected to your protected activity rather than legitimate business reasons.

Keep personal copies of all documentation at home, not just on company systems. If possible, have witnesses who can corroborate the changed treatment or hostile behaviour. The more comprehensive your documentation, the stronger your case will be if you need to take legal action.

When you first notice retaliatory behaviour, consider addressing it directly with your employer through their internal complaint procedures. Many employers have policies specifically addressing retaliation, and raising the issue formally creates an additional paper trail while giving the employer an opportunity to correct the behaviour.

Continue performing your job duties professionally and avoid giving your employer legitimate grounds for disciplinary action. Don't let frustration or anger lead to behaviour that could be used to justify adverse treatment. Maintain your professionalism even when facing unfair treatment.

If the retaliation continues or escalates after you've raised it internally, it may be time to seek external help. This could include contacting relevant government agencies, such as the Human Rights Commission for discrimination-related retaliation, or WorkSafe for health and safety retaliation.

Consider seeking legal advice early in the process, especially if the retaliation is severe or if your employer fails to address your concerns adequately. An employment lawyer can help you understand your options, including whether you have grounds for a personal grievance claim or whether interim relief might be available to stop the retaliatory behaviour while your case is resolved.

If workplace retaliation continues despite your efforts to address it internally, you may need to file a personal grievance claim. Retaliation can form the basis for several types of personal grievance, including unjustifiable action, constructive dismissal if the behaviour forces you to resign, or unjustifiable dismissal if you're fired in retaliation.

The personal grievance process typically begins with mediation, where a neutral mediator helps you and your employer try to reach a resolution. Many retaliation cases settle at mediation, as employers often prefer to avoid the publicity and costs of Employment Relations Authority proceedings.

If mediation doesn't resolve the matter, your case may proceed to the Employment Relations Authority, where you'll need to prove that retaliation occurred and that it was connected to your protected activity. The Authority can order various remedies, including compensation for lost wages, compensation for humiliation and distress, and orders requiring the employer to stop the retaliatory behaviour.

Remember that you generally have 90 days from when the retaliation occurred to raise a personal grievance, though this timeframe can sometimes be extended. Don't wait until the deadline approaches - early action often leads to better outcomes and more resolution options.

If you successfully prove workplace retaliation, various remedies may be available depending on the specific circumstances of your case. Reinstatement is possible if you were dismissed or demoted, though this isn't always practical or desirable, especially if the working relationship has broken down significantly.

Compensation for lost wages covers the financial impact of the retaliation, including lost salary, benefits, and opportunities for advancement. This can extend beyond just the immediate financial loss to include future earning capacity if the retaliation has damaged your career prospects.

Compensation for humiliation, loss of dignity, and injury to feelings recognises the personal impact of retaliation beyond just financial losses. The amount varies depending on the severity and duration of the retaliatory behaviour and its impact on your wellbeing and reputation.

The Employment Relations Authority can also make orders requiring the employer to stop the retaliatory behaviour, provide training to management, or implement policies to prevent future retaliation. In some cases, the Authority may order the employer to provide references or take other steps to mitigate the damage to your career.

Keep in mind that successful retaliation claims often result in settlement agreements that resolve the matter without admission of wrongdoing by the employer, but provide compensation and other remedies to address the impact of the retaliation.

Consider seeking legal advice as soon as you suspect retaliation is occurring, rather than waiting until the situation becomes unbearable. Early legal guidance can help you document the retaliation effectively, understand your rights, and potentially resolve the matter before it escalates further.

Definitely seek legal help if you're facing dismissal or other serious adverse actions after raising workplace concerns. The complexity of proving retaliation and the tight timeframes for taking legal action make professional legal assistance crucial for protecting your rights and achieving the best possible outcome.

An employment lawyer can help you assess whether you have a strong retaliation case, guide you through the documentation process, and advise you on the best strategy for addressing the situation. They can also help you understand the potential outcomes and risks of different approaches, from internal complaints to formal legal proceedings.

If your employer has failed to address your retaliation complaints adequately, or if the retaliation is affecting your health, wellbeing, or career prospects, don't hesitate to seek professional legal assistance. The sooner you get expert help, the more options you're likely to have available.