Personal grievances – what needs to be considered when raising one

A personal grievance (PG) is a formal process in which an employee may raise a complaint against their employer if they have been dealt with unfairly or illegally. The grounds available to raise a PG are outlined in the Employment Relations Act 2000 (ERA), together with the process for raising a PG.

The grounds
A PG means any grievance that you may have as an employee against your employer or former employer, including but not limited to the following reasons:

  • Unjustifiable dismissal (unless the dismissal was during a valid 90-day trial period);
  • Unjustifiable action which disadvantages the employee;
  • Discrimination;
  • Sexual harassment;
  • Racial harassment; or
  • Duress in relation to membership of a union or other employee organisation.

Whether a dismissal or action is justifiable depends on whether your employer acted in a way that a fair and reasonable employer would have done under the circumstances prevailing at the time the dismissal or action occurred. In the context of an unjustified dismissal, this includes assessing whether your employer followed a fair process in dismissing you and whether your employer had good reason to dismiss you. For example, was there an action serious enough to warrant immediate dismissal under the employment agreement? If not, did your employer provide you with warnings or conduct performance review meetings?

Informal avenues
In the event of conflict in the workplace, informal discussions with your employer or mediation are more pragmatic ways forward to find a solution and maintain a positive employee-employer relationship before instigating a PG. Raising a PG can be costly, time-consuming and stressful.

The process
A PG must be raised with your employer within 90 days of the date that the conflict or issue occurred. For example, if you are dismissed from your job, you have 90 days from that date to make a claim for unfair dismissal. However, your employer may allow you to raise a claim if you exceed the 90 days. If your employer does not consent to you raising a PG after the 90-day threshold, you can request the Employment Relations Authority (the Authority) or court to allow your claim, due to exceptional circumstances. These circumstances may include where:

  • You were so traumatised by the conflict that you could not raise the claim within 90 days;
  •  You made reasonable arrangements with an agent to raise the claim but your agent failed to meet the deadline;
  • Your employment agreement did not stipulate the services available for resolving employment disputes including the 90-day time period to raise a PG; or
  • Your employer did not state reasons for dismissal when required.

You should write to your employer detailing the conflicting event and the reasons why you are raising a PG. This keeps a record of your claim and is also beneficial in the event that a dispute arises. You can find a sample letter for raising a PG on the Employment New Zealand website, to use as a starting point.

As an employee, you have three years to begin proceedings with the Authority after raising a PG. If you exceed this time period, you can seek permission from the Authority to continue with your claim; however, this is rarely granted.

Remedies
If the court or the Authority settles a PG, it may provide any one or more of the following remedies to you as an employee, including but not limited to:

  • Reinstatement of your job or similar role;
  • Reimbursement of a sum equal to the whole or any part of the wages or other money lost by you as a result of the grievance;
  • Compensation paid to you by the employer for humiliation, loss of dignity, and injury to your feelings; or
  • Recommendations to your employer on what to do if a colleague was harassing you; for example, transferring that colleague or taking disciplinary or rehabilitative action against that colleague. 

It is important for employees and employers to deal with each other in good faith and have a clear understanding of their rights and obligations under an employment agreement to avoid any PG claims. If you are in a position where raising a PG is necessary, it is recommended to seek legal advice.