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.)
– 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.
– 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.
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.
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.
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.