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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90 Day Trial Period

90 day period rules

Trial Periods are Complicated.  There are very strict rules about how they are used. You still have rights.

Calculate Your Trial Dates

The 90 day trial period is a period when an employer can dismiss the employee without the employee being able to raise a personal grievance for unjustified dismissal.

If you have been dismissed during your 90 day trial and you want to know if it’s legal or fair give us a call. We will check it for you.

It’s complicated:

The Trial Period is not an automatic right of employers, it must be done correctly:

90 Day Trial Rules

  • Only an employer with 19 or fewer employees (at the beginning of the day on which the employment agreement is entered into) may employ a new employee on a trial period for the first 90 calendar days of their employment. 
  • The worker must be a new employee.
  • There must be a written employment agreement that contains a trial period clause. That clause must state the exact time period and that during the trial the employer can dismiss the employee and the employee can’t bring a personal grievance or other legal proceedings about their dismissal.  (Please note all your other rights as an employee remain and you may still raise a personal grievance on other grounds).
  • The agreement should state an official start date for a 90-day trial period.
  • The employment agreement must be signed by the worker before they start work. (If the worker starts at 9am and their agreement is signed at 9.05am on the same day, the trial is invalid)
  • The worker must have had time to get independent legal advice on the employment agreement.
  • If required, notice under the trial period must be given within the 90 days.
  • When the trial period finishes, unless the employee has been dismissed they become a permanent member of staff.

Can my employer fire me within 90 days even if I haven’t done anything wrong?

As long as the employer gives you notice of dismissal within the trial period they can dismiss you without consulting with you beforehand and for any reason. You can not bring a personal grievance against the employer in relation to the dismissal.  But, you can bring a personal grievance claim based on other grounds such as discrimination, harassment, or to recover unpaid wages. Aside from the employer’s ability to dismiss you, you should not be treated any differently from any other employee.

There are some general good faith obligations:
Your employer has an obligation to ensure that you have the tools and equipment to do your job and provide any training or coaching that is appropriate to ensure you’re successful in your role. If there are issues or concerns with any element of your employment, your employer has an obligation to ensure that they’ve raised them with you and given you the opportunity to rectify any concerns.

If the trial period isn’t going well and the employer decides to dismiss the employee, they must give notice to the employee that they will be dismissed.

The notice:

  • Must be the amount of notice in the employment agreement. If the employer doesn’t give the employee the right amount of notice then the trial period is invalid and the employee will continue to be employed (or if they were dismissed, they could bring a personal grievance for unjustified dismissal). For example, the employer can’t tell the employee that they are dismissed effective immediately if there is a 1 week notice period in their employment agreement.
  • Must be given within the trial period, even if the actual dismissal takes effect after the trial period ends. For example, if the trial period is 8 calendar weeks and the notice period is 1 week, the employer must give notice to the employee before the end of the eighth week, even though the employee won’t leave until the end of their notice period.
  • Doesn’t have to have reasons for the employee’s dismissal.

As long as all the 90 day trial rules are followed the employer is not required to give reasons for the dismissal.

Check your employment agreement to confirm there is a trial period clause.

Unless it’s in writing and signed by both employer and employee before the employee starts, the trial period isn’t valid.

If you are an Employee and have been dismissed under the 90 day trial period and you are not sure it’s fair contact us and we will check your rights.

If you believe you have a claim – you need to ensure you raise it no later than 90 days after the termination of your employment.

sources: Citizens Advice Bureau, stuff.co.nz, Employment New Zealand, The leading source of information on employment in New Zealand.

Call us on 0800 669 466 or email us using the form below so we can connect you with one of our team to help.

What is a 90 day trial period?

A 90 day trial period is a clause an employer may put in your employment contract which, when used correctly, enables the employer to take on a new employee on a trial basis for a period of 90 days.  If, for any reason, the employment relationship does not work out within the first 90 days the employer may end the employment relationship without the risk of the employee raising a personal grievance.

Watch our simple explainer video on ‘What is a 90 Day Trial’

I have been dismissed with no notice on my trial period, is that fair?

There should be a clause in your employment agreement which states how much notice you will be given if you are dismissed during your trial. In general this means that if the employer wants you to leave straight away (rather than working through your notice period), then they must pay you for the notice period.

The notice period for your trial period can be different from the notice period once you are finished the trial period, as long as the notice period for the trial is specified in the employment agreement. If the notice is not specified for the trial then your employer should adhere to the notice period in the employment contract.

If you are confused about your notice period, or have been dismissed on the spot without any notice you can call us free to find out if there is a case for unfair dismissal.

What are the employment law rules for a 90 day trial period?

If the 90 day trial clause is uses incorrectly an employer may be shocked to find out that the employee can still raise a personal grievance or claim unfair dismissal despite the 90 day trial clause being present in the employment contract.

A trial period can be less than 90 days
We refer to the 90 day trial clause but the number of days can be less than 90 days, and the exact number of days needs to be specified on the employment agreement.

The 90 day trial clause may be invalid if:

  • You were not informed in writing that your employment contract contained a 90 day trial period before you started work. Or if you signed the employment agreement after you had already started work (even by a few hours)
  • You have previously worked for the employer
  • Your employer has more than 20 employees
  • You were not advised that you had the right to seek independent legal advice or given time to seek advice before signing the contract

The clause didn’t include the correct wording of the Employment Relations Act 2000 Section 67A :

67A When employment agreement may contain provision for trial period for 90 days or less

(1) An employment agreement containing a trial provision may be entered into by a small-to-medium-sized employer and an employee who has not previously been employed by the small-to-medium-sized employer.

(2) For the purposes of this section and section 67B,—

small-to-medium-sized employer means an employer who employs fewer than 20 employees at the beginning of the day on which the employment agreement is entered into trial provision means a written provision in an employment agreement that states, or is to the effect, that—

(a) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the employee is to serve a trial period; and
(b) during that period, the small-to-medium-sized employer may dismiss the employee; and
(c) if the small-to-medium-sized employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.
Section 67A: replaced, on 6 May 2019, by section 36 of the Employment Relations Amendment Act 2018 (2018 No 53).

How much notice do I have to give if I leave my job during my 90 day trial?

Every employment agreement requires that the parties give each other notice to end the relationship.

The notice you give should be the same as the notice that your employer would have to give you according to the trial period clause in your agreement. As the employee you also should act in good faith.  If you are unhappy in your new job we would encourage you to have a conversation with your employer.  If you leave without giving the notice period that is set out in your employment agreement the employer may deduct wages in lieu of notice. In the event that the employer suffers a financial loss as a result of you failing to give notice the employer may take action in the Employment Relations Authority to recover those losses and to seek a penalty.    If you find yourself in the position of wanting to leave and are unable or unwilling to give notice you should seek legal advice from an employment lawyer or advocate.   It’s free to call us to discuss your situation with us.

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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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BACKGROUND OF SITUATION

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Discrimination in the workplace

Employers are prohibited from workplace discrimination.

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

  • colour
  • race
  • ethnic or national origins
  • sex (including pregnancy or childbirth)
  • marital or family status
  • age
  • disability
  • religious or ethical belief
  • political opinion
  • employment status
  • sexual orientation
  • involvement in union activities, which includes claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.

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 FOR A FREE CASE EVALUATION
LET’S GET LEGAL

Statistics prove that legal representation improves your chance of a successful outcome. Don’t hesitate, you have nothing to lose by having a free chat with one of our experts.

You can Call us or Email Us using the phone number or the form below. 

CONTACT FORM

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Forced Resignation

If an employer puts pressure (directly or indirectly) on an employee to resign, or makes the situation at work intolerable for the employee, it may be a forced resignation or “constructive dismissal”.

A constructive dismissal – forced resignation is where:

  • the employer has behaved in a way deliberately aimed at causing the employee to resign
  • the employee is told to choose between resigning or being dismissed
  • there has been a breach of duty by the employer (i.e. a breach of the employment agreement or of fair and reasonable treatment) such that the employee feels he or she cannot remain in the job.

However, not all conduct that upsets an employee will be enough to lead to a constructive dismissal. The conduct must be sufficiently serious to justify the employee leaving his or her job. Also, there must be a substantial risk that the employee would leave his or her job as a result of the employer’s conduct, and this risk must have been reasonably foreseeable to the employer.

If an employee feels that they are being pressured to resign then best practice is to raise this with their employer so that there is an opportunity to discuss the issue and try to resolve it. If the matter cannot be resolved and the employee feels that they had no choice but to resign, then the employee can challenge the forced resignation by raising a personal grievance.

Always call us first, once you resign it is harder for us to get you a settlement.

 

If your boss asks you to resign, ask him/her to put it in writing eg a text or email. 

 

Have you already resigned?

If you can answer yes to the questions below, then you may have good grounds to to claim you have been constructively dismissed.

  • Did you really have no choice? 
  • Did you try everything you could to resolve the situation before resigning?
  • Do you have good evidence of what you claim as the cause of your resignation?

    Some other examples

    • If you are given the option to resign or be demoted
    • If you feel you are working in an Unsafe Workplace
    • Assault on an employee
    • Abuse of an employee

We are a No Win No Fee organisation. This means that we will only charge a fee if we are successful in obtaining a financial settlement for you in addition to other terms of settlement, e.g. written apology and reference, changed from being fired to having resigned. Contact us through our contact form. or call our helpline : 0800 NO WIN NO FEE

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