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 firstname.lastname@example.org