What is a personal grievance?
It is any grievance listed in s 103 Employment Relations Act 2000 (the Act) that an employee has against their employer / former employer, including claims of:
- Unjustifiable dismissal;
- Unjustifiable action by the employer disadvantaging the employee’s condition/s of employment;
- Breach of employment standards;
- Sexual/racial harassment;
The Act provides ways to resolve personal grievances, such as mediation and Employment Relations Authority investigations.
It is often important to address a personal grievance quickly, or the parties risk incurring substantial legal and other costs.
Deterring a personal grievance
(a) Get it right first time
As workplace law specialists, we ensure our clients’ procedures, processes and documentation are consistent with best legal practice. It is far better to act from the outset to avoid potential problems, than to try to deal with them once they occur.
We cannot of course guarantee that an employee will not raise a personal grievance. But if an employer’s actions are fair and reasonable it will be difficult for an employee to succeed with a personal grievance and it will be easier for the employer to defend its actions.
Employers should obtain legal advice as soon as there is an employment issue that needs to be addressed.
(b) Talk about it
If there is an employment relationship problem, consider talking to the employee about it. (Check with your lawyer first.) An employer is legally obliged to act in good faith, including being open and communicative. Most individual employment agreements require employer and employee to discuss and attempt to resolve problems.
This is a golden opportunity to resolve a matter before it escalates – possibly to a personal grievance.
How a personal grievance is raised
The employee must make the employer aware he/she has a grievance, of the nature of the grievance, and he/she wants the employer to address it. This is usually done in writing.
Time is on your side
There is a 90 day time limit for raising a personal grievance. This can be difficult to calculate (eg. if a grievance relates to a sequence of events such as bullying). You should obtain legal advice on whether the 90 day period has expired.
Preparation for mediation
Personal grievances are often resolved in mediation. Do not underestimate the need to prepare thoroughly for mediation, covering:
- Relevant facts and documents;
- Applicable law;
- Strengths and weaknesses of each party;
- Each party’s needs and interests;
- Costs and risks of not settling at mediation; and
- The employer’s ability (financial and non-financial) to make a settlement.
How mediation works
Mediation is often the last chance a party has to control the outcome of their case. Much can be achieved if the parties work together and try to problem solve.
In mediation the parties will usually meet together with the mediator and make their opening statements. The process may then become more fluid. The parties may move to different rooms and the mediator may conduct “shuttle diplomacy” by relaying settlement offers between rooms. The parties might stay in the same room and look for middle ground.
Sometimes a party can feel strong psychological pressure to reach an agreement. If this occurs, remember:
- The other party cannot force you to agree (and vice versa); and
- Sometimes it is better not to agree.
If the parties wish, they can request that the mediator make a written recommendation which (if not objected to) will become final, binding and enforceable.
Employment Relations Authority
If the problem is not resolved at mediation, the claimant (where there is a legal clause of action e.g. personal grievance) can apply to the Employment Relations Authority for it to investigate the claim. The Authority will hear the claim, listen to witnesses, consider evidence, hear legal submissions, then make a binding decision. Authority decisions can be appealed to the Employment Court.
What Bartlett Law can do for you:
Bartlett Law specialises in employment law. We have extensive experience at mediation, in the Employment Relations Authority and Employment Court. We can assist you by:
- Introducing practices and systems to deter personal grievances
- Dealing with problems when they arise
- Preparing for mediations and attending mediations with you
- Taking claims to the Employment Relations Authority and Court and defending Authority and Court claims
Contact us for more information.