In New Zealand, an employee can raise a personal grievance if they believe their employer has acted unfairly or unreasonably towards them. The right to raise a personal grievance is covered by section 103 of the Employment Relations Act 2000 (the term “submit” a personal grievance was used in earlier legislation).
The right to raise a grievance is restricted to certain claims, ie that the employee was:
- Unjustifiably dismissed;
- Unjustifiably disadvantaged in their employment;
- Discriminated against on one of the prohibited grounds;
Sexually or racially harassed; or - Subject to duress because of their membership or non-membership of a union or an employees’ organisation.
“Disadvantaged” covers a wide range of actions, such as being given a warning, being suspended, being demoted, having the hours of work or pay changed without consultation, being underpaid, being misled by the employer, not being given an opportunity to respond to allegations, not being provided with a safe workplace, and not being provided with information about a proposal may affect the employee’s employment.
There is a 90-day time limit (from when the action that caused the grievance occurred or when the employee first became aware of that action) within which the employee must raise their personal grievance with their employer. This time limit, and the meaning of the term ‘raise’, has proved crucial in many claims.
What does “raise” mean?
To raise a grievance, an employee must bring to the employer's notice the fact that he or she wishes to challenge one or more events as unjustified to a sufficient degree that the employer can comprehend there is a grievance, the nature of it, and how the employee wishes that to be dealt with.
There are various ways in which an employee could raise a grievance, including:
- Phoning the employer to tell them about their grievance and request a meeting to resolve the issue. The parties could either try to resolve the issues between themselves, or have the meeting attended by a mediator, eg from the Mediation Service.
- Writing to the employer to ask for an explanation of the actions that led to the grievance claim.
- Writing to the employer, stating what their grievance is, the reasons for the grievance, and what they want the employer to do to resolve the matter.
- Filing a statement of the problem with the Employment Relations Authority. The parties will be directed to attend mediation before the Authority investigates the matter (unless there are very good reasons to not do so).
Case Examples
In Creedy v Commissioner of Police (2006), the employee was suspended after complaints were made about his conduct. During the disciplinary inquiry, his lawyer sent a letter to the employer stating “by this letter [the employee] serves notice that he commences a personal grievance with you”. The letter claimed the employee had been disadvantaged by the unjustified way his employer had applied the disciplinary process and it stated that he reserved his rights to pursue the personal grievance in due course. The employee subsequently relied on this letter some 2 years later to raise a personal grievance.
The Employment Court held that this letter did not raise a grievance as the legislation required. For an employer to be able to address a grievance as the legislation contemplated, the employer must know what to address. It was insufficient, and therefore not a raising of the grievance, for an employee to advise an employer that the employee simply considered that they had a personal grievance, or even to specify the type of the personal grievance.
In Clark v Nelson Marlborough Institute of Technology (2008), the employee claimed her letter raised a personal grievance. The letter raised various issues and concluded: “I look forward to a speedy resolution. My preference is that this is resolved informally and promptly. However, if not, I believe I have very strong grounds for a personal grievance. I look forward to hearing from you and your response.”
The employer claimed that the employee’s letter presented an employment relationship problem for resolution, but did not to raise a personal grievance. The Employment Court held that it did not matter what form of complaint the employee intended hers to be, or what her preferred process was for dealing with it. Equally, it did not matter whether or not the employer recognised the employee’s complaint as a personal grievance. The only issues were whether the nature of the employee’s complaint was a personal grievance within the meaning of section 103 of the Employment Relations Act 2000 and, if so, whether it conveyed the substance of the complaint sufficiently to the employer. The Court concluded the employee’s letter satisfied both these tests.
In Dickson v Unilever New Zealand Ltd (2009), the Employment Court held that the statement the employee would “fight for her job” was not enough to raise a personal grievance. Although there was no requirement for a personal grievance be raised in writing, but if raised verbally the same requirements of particularity apply.
