How do I raise a Personal Grievance?

HOW to RAISE A PERSONAL GRIEVANCE

Generally you have 90 days in which to bring an issue to the attention of your employer or former employer.

What is a personal grievance?

A personal grievance is when an employee brings a formal complaint against their current or former employer.  An employee has 90 days to raise a personal grievance.
To raise a personal grievance after the 90 days there would need to be exceptional circumstances.

What qualifies as a grievance?

Employees can bring a personal grievance for the following complaints:

  • Unjustifiable dismissal (unless the dismissal took place while the employee was on a valid 90 day trial period)
  • Discrimination
  • Sexual harassment
  • Racial harassment
  • Bullying where the employee has raised the issue and not received a response or adequate action
  • Restructuring causing redundancy without correct process
  • Disadvantage to an employee due to the employment agreement not meeting legal requirements for:
    • agreed hours of work
    • availability provisions
    • reasonable notice periods to be given before cancellation of a shift
    • reasonable compensation to be paid if a shift is cancelled
    • secondary employment provisions.
  • Unfair treatment of an employee who has lawfully refused work
  • Where an employer forces or persuades an employee not to perform a function, exercise a power or undertake a role under the Health and Safety at Work Act 2015
  • Where an employer compels a shop employee to work on Easter Sunday or treats a shop employee adversely because they refuse to work on Easter Sunday.
How do I raise a personal grievance?

If possible you should first discuss the problem with your employer.  Your employer should be aware there is an issue and be given an opportunity to fix it.  You should communicate the issue in writing and ask for a response within a set time frame, eg 3 days.

You should clearly describe the issues and the events that have led to the problem.  You should provide details and names and dates of who was present when there was a problem.  Email the letter to your employer and keep a copy.

If the employer is unwilling or unable to resolve the issue you can request a mediation. It’s helpful to seek legal advice from an employment lawyer or employment advocate at this stage.

Raising a personal grievance is part of a legal process.

An employee raising a personal grievance must do so formally, in writing, within 90 days of any incident they are raising in the grievance.

If you don’t raise the issue correctly it may not get the necessary outcome. It also will hurt your chances winning any claim at mediation or at the Employment Relations Authority.

If you think you have grounds for raising a personal grievance but you are not sure, how, it’s free to discuss it with us.  We will see how we can help and advise you of the strength of your case. 

*Note: The exception to the 90 days to bring a grievance is unpaid wages and other financial benefits under your contract.

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Think you’ve got a grievance? Who you gonna call…?

I think I speak for most employees when I say that we want things to be simple. We want to find a job we love, with people we like to work with, doing something that adds value or brings us joy.

However, sometimes it’s not that simple. For whatever reason, things can get complicated.

Sometimes this complication can end up with us losing our job or with us making the decision to move on.

Not every ending equals a grievance though.

So how do you know if you have a grievance?

As a starting point, there are some pretty general guidelines that can help you determine if you might have a grievance. Take a look at the questions and answers below. If they sound like your situation it may definitely be worth giving us a call.

1. Termination of your employment – Dismissal:

– Did your employer follow a process (i.e. give you a letter outlining their concerns, allow you to bring a support person to the meeting, outline their concerns and give you an opportunity to present your version of events, take enough time to consider all the information before making a decision) to get to the decision to terminate your employment?

If they didn’t do these things, you might have grounds for a grievance. (There is some flexibility around small employers who may not understand all of their obligations under the law, but we can talk you through this.)

2. Termination under a 90-day trial provision:

– Did your employer meet all of their obligations in relation to your employment agreement (i.e. did they make you aware of the 90-day trial provision in your agreement, does the clause in your agreement comply with the requirements under the law)?

We find that more often than not employers are breaching their obligations in relation to how they treat their employees when there is a 90-day trial provision in the agreement. There’s a good chance that your termination may be unjustified if the provision in your agreement is found to be invalid. We can have a look at your employment agreement and talk you through a potential course of action.

3. Suffering disadvantage in your employment:

– Are you being treated differently because you’re an immigrant?
– Have you been threatened or forced to work in a way that you don’t think is right or breaches the terms of your visa?
– Are you being paid for all the hours you work?
– Did you get the right training and tools to do the job you’re being asked to do?
– Is your employer communicative with you?

There are a number of ways that you may have suffered disadvantage in the workplace. We can talk through your particular situation and help work out if you have the grounds for a grievance.

4. Redundancy:

– Did your employer provide a clear and supported rationale for the decision to disestablish your role?

While business’ do have the right the restructure they need to ensure that they do it in a way that is fair and reasonable. That means that they need to provide enough information to support their proposal and the restructure needs to be for genuine business reasons (it can’t be to get rid of a problem employee!). If you don’t think the restructure completed by your employer was genuine it would be worth giving us a call.

5. No option but to resign:

– Was there something happening in your workplace that made you uncomfortable, made you not feel safe or for any other reason where you believe that you might not have any other option to resign. This may include being bullied, being asked to perform work that is unsafe or that you’re not trained to do or because you’ve been threatened while at work. (Please note that this does not include your employer requiring you to participate in performance improvement processes – if they’ve identified that there are performance concerns, or your is employer taking you through a disciplinary process because there has been an issue at work.)
– Did your employer tell you that if you didn’t resign that you would be fired?

Constructive dismissal is difficult – but not impossible. If you have a concern at work and you’ve raised your concerns with your employer and they have chosen not to do anything to resolve your concerns, you may have the grounds for a constructive dismissal claim.

6. Just need some advice and support?

We don’t just work with employees who want to raise personal grievance claims with their employers.

We can also advocate for employees in meetings and provide advice in regards to all employment matters.

The best place to start is with a phone call – call us on 0800 669 466 to see if we can help you. Or complete our Contact Form

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Take an Advocate to your Mediation

If you have raised a Personal Grievance with your Employer or previous employer (within the 90 day deadline), and you have not received a satisfactory response you can take the grievance to mediation.

What is mediation?

Mediation services are available to Employees as a method of solving employment problems before they go to  the Employment Court (the ERA).  When needing to identify the issues, resolve disputes and reach an overall outcome a third party called a ‘Mediator’ is available to help.

A successful mediation aims to save time, energy and potential costs & losses. This is a semi-formal, confidential option which allows parties to negotiate and focus on interests, agendas and opportunities to move beyond the issue at hand. We wouldn’t take you to mediation without first assessing you have a good case and being confident that we can get you your desired outcome.

Why should you take an Employment Law Advocate to mediation?

We are experts in New Zealand Employment Law. We know your rights, we have a lot of experience with these matters, and we know what financial (and other) compensations are appropriate.

Most often the employer will bring an Employment Lawyer or Employment Advocate themselves and this can put you at a disadvantage both emotionally and intellectually.  You can represent yourself, but knowing your rights and being able to stay calm and open minded during the process is important. 

To ensure the best outcome we recommend you seek representation by someone who has legal experience such as an advocate, lawyer or even a community leader.  Lawyers usually charge by the hour.  Because the mediation process can be quite time consuming it can be very expensive to hire a Lawyer.  Our Advocates are legal experts, with specialised knowledge of employment law. We can represent you all the way to the Employment Court if necessary.   Our fees are much less than it would cost to use a lawyer.  We will take your case to mediation if we think we can get you a financial outcome. You don’t pay us unless we do.

Our Employment Advocates  will:

  • help you prepare for mediation,
  • gather facts,
  • set out the law
  • identify the most appropriate solution for the issue,

We attempt to obtain a fair compensation based on the facts presented and the ways in which your employer may have breeched your rights under NZ Employment Law.

Having an Advocate represent you does not mean that you will not be involved.  Keeping involved in the process will be beneficial to voice any concerns you may have, and give the other party a chance to consider what you are saying. This can be one of the most important parts of your mediation.

You are also able to bring along a support person to your mediation should you wish. The role of a support person is to provide you with emotional support throughout the process.

Unsuccessful Mediation;

Both sides get to agree on the outcome.
Most of the time mediation is successful.  But occasionally things take a little longer.  

If no agreement is reached the case may be escalated to the Employment Relations Authority (ERA). 
Sometimes the ERA Member will direct you back to mediation. 

At the ERA the final outcome is decided by the authority member (Judge) and neither party will have a say in the settlement. The danger in taking disputes to the ERA is the chance of loss and that you may be ruled against. In some cases costs may be awarded against you, if you are seen to be the person that is in the wrong. 

See our page on ERA to get further information on this option.

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Workplace Discrimination and Prohibited Grounds

Employers are prohibited from workplace discrimination.

Experiencing workplace discrimination? We can help you on the following grounds;

These grounds are the same as the grounds in the Human Rights Act. In some circumstances, different treatment of employees on these grounds is acceptable.

If you believe your employer is discriminating against you on one or more of the prohibited grounds listed above – it is important to seek assistance at an early stage. Our company can provide representation to ensure that your rights are upheld. Contact us now to find out how we can assist you.

We want to help YOU with any workplace discrimination.

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Employment Relations Authority-Our Advocates are Experts at Employment Law

The Employment Relations Authority is an employment court that deals with employment disputes. It holds investigation meetings and gives a determination or decision that is binding and enforceable.

Where the parties cannot agree on mediation the Authority can direct the parties to mediation. It can also direct the parties to mediation a second time to resolve the dispute.

We can help you go to the Authority to obtain remedies for your grievance. Our employment law experts will advocate on your behalf with the paperwork including the application and witness statements as well as appear on your behalf to conduct the case.

We can undertake compliance proceedings if the other party does not make payment pursuant to the determination.

Most important of all we can assess the financial and other risks you have in seeking arbitration through the Authority and suggest the best way forward.

Call us if you are contemplating going to the Authority or if you cannot make progress with your employment dispute.

Disciplinary Meetings

Have you been given notice of a disciplinary or investigation meeting?

Quite often a disciplinary meeting can result in you losing your job. Particularly if it says so in the letter you have received from your employer.   If this is a risk you should consider taking an employment lawyer or advocate with you.

In the following video Kate offers some simple pointers about how to approach a disciplinary meeting:

 

At all times it is best to attend these meetings with an employment lawyer or employment advocate who can help you avoid the problems at these meetings.

You should contact us immediately you receive notice of a disciplinary meeting so that our advocate can arrange for the meeting to take place at a time convenient to all.

Your employment advocate will help you prepare beforehand and have a defense to the accusations as well as ensuring the disciplinary meeting proceeds fairly and with proper consideration of your rights.  Your advocate will also advise you on the possibilities of an exit package or grievance that may arise from the disciplinary meeting. They will also be able to advise on solutions to problems that gave rise to the disciplinary meeting including staff relocation and rearrangement of duties.

The advocate can guide you through the meeting and speak on your behalf as appropriate. We can advise you on your options before, during and after the disciplinary meeting.

You should be told in advance if the meeting is going to be disciplinary. You should be told what the meeting is about and how serious the outcome could be, so you can prepare and get support. If you are called to a disciplinary meeting you have the right to refuse to go ahead with the meeting until you have a support person. If your support person hasn’t had time to prepare, then the meeting must be rescheduled.

A Disciplinary Meeting Can Often Be A Great Opportunity To Turn Things In Your Favour, 

They Can Sometimes Be An Opportunity To Negotiate An Exit From What Has Become An Unhappy Situation For Both The Employer and the Employee.

Disciplinary meetings often open up the way to other employment solutions. The advocate can advise and assist you with these. With an advocate disciplinary meetings will be much easier and less stressful. With our help a disciplinary meeting can often lead to a better employer/employee relationship in the long-run.

The seriousness of the disciplinary action must reflect the seriousness of your actions: the punishment must fit the crime. Any disciplinary action, such as a warning or dismissal, must be the same action taken against other workers who have done the same thing in the past. You cannot get a harsher punishment than another worker for doing the same thing.
Contact us as soon as you are advised of a disciplinary meeting – we can help.

Never attend a disciplinary or investigation meeting without calling us first.

If you have attended a disciplinary meeting and you are unhappy with the outcome you may be entitled to raise a personal grievance.

 

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