An employment relationship is built on trust and confidence. Where employers have taken action or failed to take action, where they should have, that undermines the trust and confidence essential to a productive working relationship, employees are entitled to legal relief. Where the employer’s action falls into one of the categories listed below, the employee is entitled to raise a personal grievance with their employer.
One of the most important aspects of making a claim is that the employee must raise the personal grievance with their employer within 90 days of the grievance arising or coming to the employee’s attention. A grievance will be raised as soon as the employee has made or taken reasonable steps to make the employer aware that they are alleging a personal grievance that needs to be addressed.
Depending on the nature of the personal grievance, the first port of call in any relationship problem is usually to attempt to resolve the problem amicably and informally. Both parties to an employment relationship have a duty of good faith, which requires both parties to be “responsive and communicative” in maintaining a productive employment relationship.
An employee wanting to bring a claim for personal grievance should communicate the matter to their employer in writing clearly and with sufficient detail so that the employer can respond to the grievance raised. After sending the letter, the employee may wish to set up a meeting with their employer so that they can discuss the points raised in the letter and seek a resolution together.
If the parties have attempted to resolve the matter informally together but cannot, the next port of call is mediation. Often parties will not attempt an informal resolution between. This can occur where the personal grievance is sensitive or if one of the parties is concerned that the employment relationship has broken down to such a degree that attempting to resolve the matter informally is unlikely to be constructive.
Mediation is a voluntary meeting between parties to a dispute. Parties are brought together to exchange positions concerning the issues with the aim to come to an agreement. After discussion of the issues, the parties will often retire to separate rooms and offers will be exchanged through the mediator. It is often helpful to attend mediation with your desired outcome in mind but also with enough of an open mind to work with the other party to reach a conclusion. For more information on preparation, see our blog How to prepare for a mediation meeting.
The outcome of a successful mediation is agreement, which will result in a record of resolution being drawn up to record the agreement. Once signed by the parties, the agreement is legally binding on both parties.
An employee may make an application to the Authority. It will make a determination, looking to the facts of the case and taking into account the test as set by section 103A(2) of the Employment Relations Act:
whether the employer’s actions and how the employer acted were what a fair and reasonable employer would have done in all the circumstances at the time a dismissal or action occurred.
If mediation hasn’t been attempted prior to a claim being lodged with the Authority, it is likely that it will recommend mediation.
Other remedies concerning personal grievances include the following:
These situations can feel complex and sometimes overwhelming to work through for employees. Throughout all the possible stages a personal grievance may take an employee, an experienced employment lawyer is an excellent resource to help effectively guide you through the process and respond to any issues as they arise.
For personalised support and advice on an employment-related issue, contact Bell and Co for a confidential chat on (04) 499 4014.