When you’re fac­ing a per­sonal griev­ance


‘‘A per­sonal griev­ance must be raised with the em­ployer within 90 days.’’

Aper­sonal griev­ance can be raised on a num­ber of grounds. They are: un­jus­ti­fied dis­missal; sex­ual or racial ha­rass­ment; duress due to union mem­ber­ship or ac­tiv­ity; dis­missal or be­ing dis­ad­van­taged in re­tal­i­a­tion for some ac­tion taken in re­la­tion to a health and safety is­sue; dis­crim­i­na­tion; un­jus­ti­fied dis­ad­van­tage suf­fered in terms of en­ti­tle­ment in an em­ploy­ment agree­ment; not record­ing agreed work hours in writ­ing; breach­ing rules around zero hour con­tracts; turn­ing down work when the em­ployee did not have a valid avail­abil­ity clause in their em­ploy­ment agree­ment; breach­ing the rule around can­celling shifts; or un­rea­son­ably pre­vent­ing an em­ployee from also working for other em­ploy­ers.

A per­sonal griev­ance must be raised with the em­ployer within 90 days af­ter the event or ac­tion that led to the per­sonal griev­ance, or within 90 days af­ter the em­ployee be­came aware of the event or ac­tion, un­less the em­ployer agrees or the Em­ploy­ment Re­la­tions Author­ity al­lows it. There must be ex­cep­tional cir­cum­stances, and it must be ‘‘just’’ to al­low it.

A per­sonal griev­ance does not have to be made in writ­ing, but it is rec­om­mended to do so. The griev­ance should in­clude the na­ture of the griev­ance, the rel­e­vant facts, and what you want done in or­der to rem­edy it.

In re­sponse, if a per­sonal griev­ance has been raised the first step is to clar­ify the prob­lem. This will re­quire con­sult­ing the ex­ist­ing em­ploy­ment agree­ment, and other rules about the par­ties’ rights and obli­ga­tions to­wards each other. The em­ployer must dis­cuss the prob­lem with the em­ployee and in­ves­ti­gate any al­le­ga­tions if nec­es­sary, and take ap­pro­pri­ate ac­tion in re­sponse. The em­ployee is en­ti­tled to a sup­port per­son or rep­re­sen­ta­tive.

If the per­sonal griev­ance is not re­solved be­tween the par­ties, they can go to me­di­a­tion. The Min­istry of Business In­no­va­tion and Em­ploy­ment Me­di­a­tion Ser­vice pro­vides ser­vices free of charge. You may also de­cide to en­gage a pri­vate me­di­a­tor in­stead.

Me­di­a­tion is a vol­un­tary process where the par­ties are en­cour­aged to talk freely and frankly about the griev­ance with the as­sis­tance of a neu­tral and in­de­pen­dent me­di­a­tor. The process is also con­fi­den­tial.

At me­di­a­tion, the par­ties aim to come up with prac­ti­cal so­lu­tions for the prob­lem and may agree on a set­tle­ment. The set­tle­ment can be recorded in writ­ing and if it is signed by a me­di­a­tor from the Me­di­a­tion Ser­vice, it will be legally bind­ing and en­force­able.

If me­di­a­tion fails to re­solve the prob­lem the per­sonal griev­ance may es­ca­late to the Em­ploy­ment Re­la­tions Author­ity which will in­ves­ti­gate and make a de­ci­sion.

The Em­ploy­ment Re­la­tions Author­ity is nor­mally open to the pub­lic and the me­dia, and the process is more for­mal and le­gal­is­tic than me­di­a­tion, but more flex­i­ble than tra­di­tional court pro­cesses.

If you are un­happy about the Em­ploy­ment Re­la­tion Author­ity de­ci­sion you may ap­peal to the Em­ploy­ment Court within 28 days.

Col­umn cour­tesy of RAINEY COLLINS LAWYERS phone 0800 733 484 www.rain­ey­collins.co.nz. If you have a le­gal in­quiry you would like dis­cussed in this col­umn please email Alan on aknowsley@rain­ey­collins.co.nz

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