Employment Relations
Consultants Est. 2004
Member of The Employment Law Institute of New Zealand INC
Employer assistance

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 - Below] 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.

Section 103 of the Employment Relations Act 2000 defines a personal grievance as “……any grievance that an employee may have against the employee’s employer of former employer because of a claim –
(a) That the employee has been unjustifiably dismissed; or
(b)That the employee’s employment, or 1 or more conditions of the employee’s employment (including any condition that survives termination of the employment) is or are or was (during employment that has since been terminated) affected to the employee’s disadvantage by some unjustifiable action by the employer; or
(c)That the employee has been discriminated against in the employee's employment; or
(d)That the employee has been sexually harassed in the employee's employment; or
(e) That the employee has been racially harassed in the employee's employment; or
(f)That the employee has been subject to duress in the employee's employment in relation to membership or non-membership of a union or employees organisation”

Please note that these definitions are intended as a guideline only and should not, under any circumstances, be considered as “legal advice”.  The individual nature of all employment related matters means that proper legal advice should be always be sought prior to any action being taken. Any uncertainty about whether or not a personal grievance exists can be addressed with our free consultation service.

Unjustified Dismissal – This is where an employer dismisses an employee for any reason and the employee believes that the dismissal was unfair or unwarranted.  In some cases the employee may suspect that the dismissal occurred for an unstated reason or that the employer may have had an ulterior motive.  In some cases the dismissal may be termed unjustified because the dismissal was carried out in a procedurally unfair manner.

Constructive Dismissal – This is the most difficult of employment law matters to prove.  In simplistic terms this occurs when an employee is put in an untenable situation and feels that he/she cannot possibly continue to work under the circumstances. All efforts to have the situation addressed by their employer have failed and the employee feels they have no other option but to resign.

Unjustified Disadvantage – This is where an employer makes changes without proper consultation to conditions of employment which may be to the employee’s disadvantage.

Sexual Harassment –  This is a very serious and complicated claim. The definition of sexual harassment is clearly defined in The Employment Relations Act 2000 in section 108 which reads:

108.Sexual harassment

(1)   For the purposes of sections 103(1)(d) and 123(d), an employee is sexually harassed in that employee's employment if that employee's employer or a representative of that employer—

(a)   directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains—                                                            
(i)      an implied or overt promise of preferential treatment in that employee's employment; or                                                            
(ii)     an implied or overt threat of detrimental treatment in that employee's employment; or                                                              
(iii)    an implied or overt threat about the present or future employment status of that employee; or(

b)   by—                                                            
(i)      the use of language (whether written or spoken) of a sexual nature; or                                                          
(ii)      the use of visual material of a sexual nature; or                                                        
(iii)      physical behaviour of a sexual nature,—

directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.

(2)   For the purposes of sections 103(1)(d) and 123(d), an employee is also sexually harassed in that employee's employment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.

Section 117 of the act basically covers the employer’s responsibilities in the event of an employee being harassed by someone other than the employer or the employer’s representative.  These matters are very sensitive and are often difficult for the complainant to detail.

Wage Arrears – This is where an employer refuses to pay an employee all or part of income due to them.  There are a number of ways that this can occur. The most common is when an employment is terminated or a resignation occurs and outstanding holiday pay or final wages remains unpaid.

Redundancies – Redundancies occur when a position is “no longer required”.  The employer must have a legitimate reason for making the redundancy and procedures for the handling of redundancies are quite clearly defined.  Many employment agreements provide for no payment in the event of redundancy, others remain mute on the subject. Independent advice is essential in the cases of redundancy or false redundancy.

Exit Packages - Sometimes an employment situation reaches the stage where it is simply in everybody’s interests that the two involved parties go their separate ways.  In these cases even the suggestion of an exit package can compromise either party’s rights further down the track if the suggestion is rejected by the other party.  An independent third party can often broker (mediate) an agreement between the two parties which suits both sides. Such agreements are drawn up and are legally binding on both parties.  They will often contain clauses which protect both parties from any further action and/or vindictive treatment in the future.

Please note that these definitions are intended as a guideline only and should not, under any circumstances, be considered as “legal advice”.  The individual nature of all employment related matters means that proper legal advice should be always be sought prior to any action being taken. Any uncertainty about whether or not a personal grievance exists can be addressed with our free consultation service.

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