Hans van Schreven
Partner at Clark Boyce Lawyers
How to bring a personal grievance against your employer
To bring a personal grievance against your employer you must start by raising the grievance with your employer. There is a time limit of 90 days. If your employer doesn't deal with the problem you can take your grievance to the Employment Relations Authority.
The Employment Relations Authority was set up by the EMPLOYMENT RELATIONS ACT 2000 (which came into force on 1 October 2000), replacing the Employment Tribunal. Under the EMPLOYMENT RELATIONS ACT 2000 there is more emphasis on mediation in dealing with personal grievances and other employment problems; the Employment Relations Authority also has a more informal and investigative function than the old Tribunal.
The Department of Labour's Employment Relations Service can provide you with information, mediation services and general assistance: contact them on 0800 800 863.
What are the grounds for bringing a personal grievance?
You have grounds to bring a personal grievance claim if any of the following situations apply to you:
- You have been dismissed unjustifiably, whether for redundancy, poor work performance, illness or injury, or serious misconduct. Whether the dismissal was justifiable depends on an objective test - namely, whether what the employer did, and how they did it, meets the standard of a fair and reasonable employer in those circumstances.
- Your employer has unjustifiably changed your employment conditions in a way that you feel has disadvantaged you (including any condition that goes past the end of your employment). Again, whether the employer's actions were justifiable depends on the test of the "fair and reasonable employer".
- You have been discriminated against at work
- on the basis of sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status or sexual orientation, or
- because you refused to do work you believed was likely to cause you serious harm, or
- on the basis of your involvement in union activities
- You have been sexually harassed at work by your employer or one of his or her representatives, or you have been sexually harassed by a co-worker or one of your employer's customers or clients and your employer has not taken steps to deal with it. (See How to bring a sexual harassment claim against your employer.)
- You have been racially harassed at work by your employer or one of his or her representatives, or you have been racially harassed by a co-worker or one of your employer's customers or clients and your employer has not taken steps to deal with it.
- Your employer has subjected you to duress because you belong or don't belong to a union.
Is there a time limit for raising a personal grievance?
Yes. If you believe that one of the above grounds applies to you, it's vital that you take action quickly: you have 90 days from the date the grievance arose or came to your notice to raise the grievance with your employer. If you don't do this within the 90 days, the employer doesn't have to consider the grievance and you cannot take your grievance to the Employment Relations Authority.
Assuming your employer does not consent to you raising the grievance outside the 90-day limit, you will be able to raise a late grievance only if you can satisfy the Employment Relations Authority that there are exceptional circumstances.
When do "exceptional circumstances" for bringing a late grievance exist?
Exceptional circumstances include the following:
- You were so affected or traumatised by the relevant incidents that you were unable to properly consider raising the grievance within the 90-day period.
- You made reasonable arrangements for someone to raise the grievance on your behalf, but that person failed to do this in time.
- Your employment agreement does not contain an explanation of the personal grievance procedure, as the law requires.
- Your employer failed to give you a written statement of reasons for dismissing you after you requested it.
Do I have to raise the grievance in writing?
To raise the grievance with your employer you do not have to make a written complaint. You are required only to make the employer aware, or take reasonable steps to make him or her aware, that you allege a personal grievance that you want addressed.
However, it is advisable that you do raise the grievance in writing, stating the nature of the grievance, the relevant facts, and what you want done to put it right.
What if my employer doesn't deal with the problem?
If your employer doesn't correct the situation, then you can take your grievance to the Employment Relations Authority by lodging an application in the prescribed form.
You cannot bring a personal grievance to the Authority more than three years after you raised the grievance with your employer.
Before taking your grievance to the Authority you may, however, wish to seek mediation assistance to resolve the issue. The Department of Labour's Employment Relations Service provides mediation services and general information and assistance to help resolve personal grievances and other employment-related conflicts: contact them on 0800 800 863. If the matter proceeds to the Employment Relations Authority you will usually be referred to mediation in any case.
How does the Employment Relations Authority deal with personal grievance claims?
If you bring your personal grievance to the Employment Relations Authority, the Authority will attempt to resolve the issue through mediation, and if that is not successful it will investigate the issue and make a decision.
The EMPLOYMENT RELATIONS ACT 2000 puts greater emphasis than did the previous Act on mediation in resolving employment conflicts, including personal grievances. Under the old law a person bringing a personal grievance to the Employment Tribunal (replaced by the Employment Relations Authority) had the option of choosing mediation or "adjudication" (a formal hearing). But under the EMPLOYMENT RELATIONS ACT 2000 mediation is a compulsory first stage in all matters before the Authority.
When an issue comes before the Authority it must first consider whether the parties have attempted to resolve it through mediation. It must order that mediation or, as the case may be, further mediation be used before it investigates the matter, unless it thinks that this will not be useful.
What happens at mediation?
Mediation is a technique that allows the parties to resolve their differences with the help of an employment mediator. A mediator may talk to both parties together or separately. The mediator should listen to both sides of the story, clarify the needs of each party, encourage the parties to discuss together how they each see the situation, and help the parties to reach a solution that is acceptable to them both.
If the parties are able to reach an agreement the mediator will record the agreement and it then becomes binding and can be enforced by either party. The parties can also agree to have the mediator decide the issue.
An important advantage of mediation is that it is informal and private: the media and public are not permitted to be present.
Whereas previously mediation was a formal procedure and normally consisted of a hearing at the Employment Tribunal offices, under the EMPLOYMENT RELATIONS ACT 2000 it can be a more flexible and informal process, with mediators having a broad discretion to decide exactly what form the mediation should take. Mediation may include, for example, visiting the parties at their workplace.
From 1 December 2004, a different mediation process is available for certain types of problems. In these cases the length of the mediation process will be limited and the mediator will decide the matter if the parties cannot agree. This new process is designed to provide speedy resolution where the parties think the dispute can be resolved with only moderate outside assistance and they agree to accept the mediator's decision if mediation doesn't resolve the matter.
What if mediation doesn't resolve my grievance?
If no agreement can be reached through mediation, the matter will go to the Employment Relations Authority for it to investigate the matter and make a decision.
A disadvantage of going to this stage rather than reaching a mediated settlement may be that it is normally open to the public and media. This stage is also more legalistic than mediation; however, under the Act it is intended to be less legalistic than previously.
The Authority has much flexibility in how it comes to a decision on a matter. It is primarily an investigative body, with the role of resolving employment problems by establishing the facts and making a decision on the substantial merits of the case, without regard to technicalities. For example, it can interview either of the parties or anyone else before, during or after an investigation meeting.
The EMPLOYMENT RELATIONS ACT 2000 requires the Authority to comply with the principles of natural justice, which generally means that the Authority must be free from bias and that it must grant each party the right to be heard. However, this doesn't require the Authority to allow the cross-examination of any party or person, although the Authority can allow this if it chooses to. The Act also requires the Authority to act reasonably having regard to its investigative function.
It is common practice for the party who loses to be ordered to compensate the successful party for some or all of his or her legal costs.
What can the Employment Relations Authority do if it upholds my claim?
If the Authority decides that you do have a personal grievance, it may do one or more of the following things:
- reinstate you in your old position or place you in a new position that is at least as advantageous to you as your old position
- order you to be reimbursed for some or all of the wages or other money that you have lost as a result of the grievance
- order your employer to pay you compensation, including compensation for humiliation, loss of dignity, and injury to feelings, and compensation for loss of any benefit (monetary or otherwise) that you might otherwise have been expected to get
- if it finds that any workplace conduct or practices are a significant factor in the personal grievance, recommend to your employer what action it should take to prevent similar employment relationship problems happening
- if you were sexually or racially harassed in your employment, recommend to your employer what he or she should do about the person who harassed you (such as a transfer or disciplinary action) or about any other action necessary to prevent harassment in that workplace
The EMPLOYMENT RELATIONS ACT 2000 puts the emphasis on reinstatement as the main remedy to be used. If reinstatement is one of the remedies you have sought in bringing your personal grievance, then the Employment Relations Authority must reinstate you if this is practicable, regardless of any other remedies it orders.
What if I'm not happy with the Employment Relations Authority's decision?
If either you or your employer is dissatisfied with the Authority's decision, you can appeal to the Employment Court for it to hear the matter. You have 28 days to lodge your appeal
You have a choice as to whether the Court hears the matter "de novo", which means that there is a full hearing in which the Court considers all questions of fact and law, or whether there is a limited appeal only on particular grounds.
If you do request a full hearing, the Court may ask the Authority to provide it with a written report on whether you and your employer facilitated rather than obstructed the Authority's investigation and whether you acted in good faith towards each other.
Will I need to get someone to represent me?
In taking a personal grievance claim, it may be very useful to have someone that can represent your point of view and who is able to advise you on each step. This could be either a lawyer or a union representative. Likewise your employer is entitled to have someone such as a lawyer or other professional advocate to represent his or her view.
These representatives are entitled to attend any meetings held between you and your employer, and can assist in attempting to resolve disputes quickly and informally before they are referred to the Employment Relations Authority.
If the matter is likely to proceed to the Authority it is advisable that you obtain the services of a person who is skilled in and familiar with this area of law and the processes involved.
Complaints under the Human Rights Act
If you were discriminated against or sexually or racially harassed, you have the option of pursuing the matter through the Human Rights Commission under the HUMAN RIGHTS ACT 1993, instead of taking a personal grievance. You must do one or the other - you cannot do both.
If your complaint is upheld, there are a variety of remedies that you may be granted: see How to complain about discrimination to the Human Rights Commission.
- Special procedures apply when the grievance is for sexual harassment (see How to bring a sexual harassment claim against your employer) or for wrongful dismissal (see How to bring a wrongful dismissal claim against your employer).
- You should check your employment contract before lodging a personal grievance, as it may set out an alternative procedure that you are contractually bound to follow.
- The importance of acting promptly cannot be emphasised enough, given the strict 90-day time limit. It is essential that you seek advice early on about your rights and the options available to you.