How to defend a personal grievance claim brought by an employee in New Zealand

How is a personal grievance claim begun?

An employee who believes he or she has grounds for a personal grievance against you must raise it with you within 90 days. If the employee is not satisfied with your response, he or she can take the grievance to the Employment Relations Authority.

The Employment Relations Authority was set up by the The New Zealand 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.

For further information on personal grievances, contact the Department of Labour's Employment Relations Service on 0800 800 863. They can provide you with mediation and other assistance to resolve the problem.

Time limit for bringing personal grievance

Your employee has 90 days beginning from the date of the alleged behaviour to raise the grievance with you. This does not have to be in writing.

This time limit is enforced strictly by the courts, except in two situations:

• if you as the employer consent to a claim being lodged outside the 90-day period, or
• if there are exceptional circumstances

On what grounds can an employee bring a personal grievance?

An employee has grounds to bring a personal grievance claim if any of the following situations apply:

• The employee was dismissed unjustifiably, whether for redundancy, poor work performance, illness or injury, or serious misconduct. Employers must follow certain procedures when dismissing an employee, and therefore an employee can bring a personal grievance on the grounds that the dismissal was procedurally unfair, as well as that it was substantively unjustified: see How to discipline an employee and How to dismiss an employee. Whether the dismissal was justifiable depends on an objective test - namely, whether what you did, and how you did it, met the standard of a fair and reasonable employer in those circumstances.
• The employee's employment conditions were unjustifiably changed in a way that the employee feels has disadvantaged him or her (including any condition that goes past the end of the employment). Again, whether your actions were justifiable depends on the test of the "fair and reasonable employer".
• The employee was 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 they refused to do work they believed was likely to cause them serious harm, or
  • on the basis of their involvement in union activities
• The employee was sexually harassed at work by an employer or a representative of the employer, or was sexually harassed by a co-worker or one of the employer's customers or clients and the employer did not take steps to deal with it. (See How to bring a sexual harassment claim against your employer.)
• The employee was racially harassed at work by an employer or a representative of the employer, or was racially harassed by a co-worker or one of the employer's customers or clients and the employer did not take steps to deal with it.
• The employee was subjected to duress by an employer because the employee belongs or doesn't belong to a union.

Will I need legal representation?

The employer and the employee each have the right to choose another person to represent them in taking or defending an action under the personal grievance procedure. It is often very useful to have someone who can present your point of view and who can advise you at each step in the process.

This includes the right to have a lawyer or other professional representative present at any meetings held between the parties and to assist in attempting to resolve disputes quickly and informally, if possible 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.

Resolving the dispute through mediation before it goes to the Employment Relations Authority

If an employee raises a personal grievance with you that you do not believe is well founded, there are mediation services available that can help you and the employee resolve the issue. Contact the Department of Labour's Employment Relations Service 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 grievances?

If your employee takes the 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 the issue?

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 finds against me?

If the Authority decides that the employee does have a personal grievance, it may do one or more of the following things:

• reinstate the employee in his or her old position or place the employee in a new position that is at least as advantageous as the old one
• order the employee to be reimbursed for some or all of the wages or other money lost as a result of the grievance
• order you to pay the employee compensation, including compensation for humiliation, loss of dignity, and injury to feelings, and compensation for loss of any benefit (monetary or otherwise) that the employee 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 what action you should take to prevent similar employment relationship problems happening
• if the employee was sexually or racially harassed, recommend to you what you should do about the person who did the harassing (such as a transfer or disciplinary action) or about any other action necessary to prevent harassment in that workplace

The EMPLOYMENT RELATIONS ACT 2002 puts the emphasis on reinstatement as the main remedy to be used. If reinstatement is one of the remedies the employee sought in bringing the personal grievance, then the Employment Relations Authority must reinstate the employee if this is practicable, regardless of what other remedies it orders.

Can I appeal the Authority's decision?

If either you or the employee 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 the employee facilitated rather than obstructed the Authority's investigation and whether you acted in good faith towards each other.

The New Zealand Employment website has an additional article on Personal grievances.
 

Other New Zealand Employment Law resources

• The New Zealand Government website Employment is an additional useful guide.
   
• The NZ Employment Relations Authority assists you further seek assistance in resolving employment related issues. It is an independent body.
   
• The NZ Employment Court allows you to challenge a decision made by the Employment Relations Authority.
   
• The NZ Human Rights Review Tribunal assists with issues of human rights and privacy at work.
   
• The NZ Employment Relations Authority has a database of previous cases for review.
   
• The NZ Government website Employment has a free tool for creating employment agreements - help yourself.

 

Cautionary notes

• It is important that you as an employer familiarise yourself at an early stage with your rights and obligations and with those of your employees – for example, your duty to give appropriate warnings should you wish to take disciplinary action against an employee. Being aware of these rights and obligations will mean that you will be less likely to be confronted with a personal grievance claim and that you will be able to resolve or defend it more effectively should a claim be brought against you.
• Special procedures exist for sexual harassment claims (see How to bring a sexual harassment claim against your employer). You should therefore seek professional advice if faced with such a claim.