A workplace is made up of many individuals with different personalities and behaviours. Because of this, being a part of a workplace involves cooperation, communication and tolerance in order for the workplace to function effectively. The employer and employee relationship is a foundational block for the effective functioning of a workplace. It is a relationship built on trust and confidence that imports obligations to help create a safe, supportive environment. This relationship can be challenged where actions occur that undermine the trust and confidence of both parties. When this occurs, employment law steps in to support parties. This could be in the form of a personal grievance.

Employment New Zealand defines a personal grievance as a type of complaint that an employee may bring against a current or former employer. The test for a personal grievance is 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. This is laid down in the Employment Relations Act 2000.

Grounds for a personal grievance include unjustified dismissal and unjustifiable action that disadvantages an employee. Further grounds for personal grievance are discrimination and sexual and racial harassment. For more information on the latter grounds for personal grievance, see our blogs Types of employment and workplace discrimination and Understanding sexual harassment in the workplace.

Unjustified dismissal

A personal grievance that is commonly argued is unjustified dismissal. The dismissal of an employee can only occur where there is good reason and the dismissal is carried out fairly. If either of these requirements are not fulfilled, an employee may have grounds to bring a personal grievance.

When an employee is dismissed, they have a right to know the reasons why. The employee has 60 days to request the reasons, and the employer has 14 days to respond. If the employer does not respond, this can be classed as a personal grievance. Good reasons for dismissal include: an employee’s performance not improving after a performance plan has been implemented, bullying by the employee or where the employment relationship has failed so that the relationship of trust and confidence between employer and employee has been broken.

Whether the process of dismissal is fair will depend on the workplace in issue. Every workplace should have a policy in place alongside clauses in employment agreements to work through the dismissal process. Section 103A(3) of the Employment Relations Act details what the Employment Relations Authority or Employment Court must take into account when determining whether the actions of an employer were justified. This includes:

  • sufficient investigation of the allegations against an employee prior to dismissal
  • whether the employer raised the issue with the employee before dismissal
  • whether the employee was given a reasonable opportunity to respond to the employer’s concerns before dismissal
  • whether the employer genuinely took the employee’s explanation, if it had been given, into account before dismissal.

Unjustified disadvantage

Another example of grounds for a personal grievance is an unjustified action that affects the employee’s employment to disadvantage them or make it harder for them to carry out their role. An action will be unjustified where it is unfair, unreasonable or not carried out in good faith.

Unjustified disadvantage includes an employer not addressing a concern raised by an employee that makes it difficult for the employee to carry out their role. For example, an employee may raise an allegation of bullying. The employer must follow this up in order to resolve the issue, otherwise they might be held to be unjustifiably disadvantaging the employee in an unsupportive workplace. Unjustified disadvantage also includes the reduction of allocated work to an employee and unexplained demotion.

Constructive dismissal

A constructive dismissal occurs where an employee feels as though the employer has put them in a position so that they have no alternative but to resign from their role. This strikes at the heart of the employment relationship: good faith and trust and confidence.

Donaldson and Youngman (t/a Law Courts Hotel) v Dickson is an example of constructive dismissal. The employee was called into a meeting with an employer where she was given a two-page list of concerns regarding her performance in her role. Prior to the meeting, no concerns had been raised. The employee was put in a position where she felt she had no other course of action other than to resign. The Court found that presenting all concerns, which would have accumulated over her employment, in one go to target and overwhelm the employee was unacceptable and grounds for a constructive dismissal.

It is important to note that an employer is able to raise concerns regarding an employee’s performance and can discuss future performance in the business. This does not constitute grounds for constructive dismissal.

How to raise a personal grievance

If the employee wants to bring a claim for personal grievance, it must done within 90 days of the event. When bringing a claim for personal grievance, an employee must detail their claim clearly and note their reasons for the claim. This must be sufficiently detailed in order for the employer to respond to the grievance.

An employment lawyer is a useful source in assisting an employee to work through their claim of personal grievance. For more information call the employment lawyers at Bell & Co on (04) 499 4014.