|Personal Grievance or Employment Dispute|
Because of the legislation’s sweeping connotations an employee can lodge a personal grievance with relative impunity. In most instances there is a foundation for a grievance albeit often a flaw in the procedural aspect of a dismissal. Occasionally, however, an employee will lodge a grievance for vexatious reasons and suffer no consequences for such an action unless the matter proceeds to (and fails at) The Employment Relations Authority.
Because of this, precautions in the course of any actions taken by the employer cannot guarantee that a personal grievance will not be lodged. Those precautions can only limit the exposure of an employer and lessen both the risk and the cost.
The most common type of personal grievance is unjustified dismissal. [see What is a personal grievance? and Types of Personal Grievances or disputes] There are two aspects to a dismissal; the substantive aspect ( why someone was dismissed) and the procedural aspect ( how someone was dismissed). When a dismissal occurs both aspects must be addressed appropriately. In many cases, while the substance of a dismissal is provided for, it is the procedural side or the process which is failing. Indeed, the procedural requirements for a dismissal can be complex and, for the uninitiated, difficult to meet. Even understanding the requirements can prove difficult as much of the provision is found not in legislation but in common or case law. Precedents of cases which have been dealt with in the past dictate the guidelines for the future.
Even dealing with an employee under discipline can be complex and what may appear to the employer to be a reasonable way of settling a dispute can provide a lever for a claim (often not insignificant) after the employment has been terminated.
Employment Relations Consultants can assist with these matters and will enter the situation at any stage including the provision of guidance through the disciplinary process. Our advocates are experienced in procedural requirements and, should a personal grievance be lodged, take the pressure of that away from the employer while they concentrate on the important aspect of running their business.
When an employer gives us the responsibility of handling a personal grievance we will, through interviewing the employer and anyone else who may be involved and balancing that against a thorough analysis of the claims lodged, determine the employer’s exposure. Once we have assessed the depth of that exposure we will use our experience and knowledge of employment law to lessen the cost to the employer. This may involve direct negotiation with the ex-employee or their representative or if the matter progresses we will provide representation at mediation or the Employment Relations Authority. In the unlikely event that the matter progresses past the ERA we will provide representation in the Employment Court.
If there is any advice we can offer employers which will cover every aspect of handling an employment dispute or a personal grievance it is this; Do not wait, call us at the first sign of trouble – the cost will be minimal compared to the risk you could expose yourself to.
Footnote: There is an emerging trend to use independent contractors in the place of employees. There are risks for the employer in these cases as the authorities are conscious of “employees in disguise” which can lead to an employer avoiding the responsibilities of taxation, ACC etc and effectively denying the employee access to holiday pay and sick pay etc. There have been many cases of contractors taking personal grievances against employers claiming that they were, in fact, employees and if successful can claim substantial sums for backdated holiday pay as well as the denial of fundamental rights regarding dismissal and so on. Bryson v Three Foot Six Limited is one such case which has really set the benchmark for cases in New Zealand. It is our opinion that it is relatively easy to prove a contractor to be an employee despite the intentions of the parties at the outset. We have been successful in defending an Employer in a case like this and this can be viewed here.We can assist employers who are taking on contractors with advice and written contracts which should provide the best chance of avoiding such a claim.
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