HOW TO RAISE A PERSONAL GRIEVANCE
In New Zealand an employee can raise a personal grievance if they believe their employer has acted unfairly or unreasonably towards them. The right to raise a personal grievance is covered by Section 103 of the Employment Relations Act 2000.
The right to raise a grievance is restricted to certain claims, i.e. that the employee was:
“Disadvantaged” covers a wide range of actions, such as being given a warning, being suspended, being demoted, having the hours of work or pay changed without consultation, being underpaid, being misled by the employer, not being given an opportunity to respond to allegations, not being provided with a safe workplace and not being provided with information about a proposal that may affect the employee’s employment.
There is a 90 day time limit, (from which the action that caused the grievance occurred or when the employee first became aware of that action), within which the employee must raise their personal grievance with their employer. This time limit and the meaning of the term “raise” has proved crucial in many claims.
What Does “Raise” Mean
To raise a grievance an employee must bring to the employer’s notice the fact that he or she wishes to challenge one or more events as unjustified to a sufficient degree that the employer can comprehend that there is a grievance, the nature of it and how the employee wishes it to be dealt with.
There are various ways in which an employee could raise a grievance, including:
Phoning the employer to tell them about their grievance and requesting a meeting to resolve the issue. The parties could either try to resolve the issues between themselves, or have the meeting attended by a mediator, e.g. from the Mediation Service.
In Creedy v Commissioner of Police (2006), the employee was suspended after complaints were made about his conduct. During the disciplinary inquiry his lawyer sent a letter to the employer stating “by this letter [the employee] serves notice that he commences a personal grievance with you.” The letter claimed the employee had been disadvantaged by the unjustified way his employer had applied the disciplinary process and it stated that he reserved his rights to pursue the personal grievance in due course. The employee subsequently relied on this letter some two years later to raise a personal grievance.
The Employment Court held that this letter did not raise a grievance as the legislation required. For an employer to be able to address a grievance as the legislation contemplated, the employer must know what to address. It was insufficient, and therefore not a raising of the grievance, for an employee to advise an employer that the employee simply considered that they had a personal grievance, or even to specify the type of the personal grievance.
In Clark v Marlborough Institute of Technology (2008), the employee claimed her letter raised a personal grievance. The letter raised various issues and concluded “I look forward to a speedy resolution. My preference is that this is resolved informally and promptly. However, if not, I believe that I have very strong grounds for a personal grievance. I look forward to hearing from you and your response.
The employer claimed that the employee’s letter presented an employment relationship problem for resolution but did not raise a personal grievance. The Employment Court held that it did not matter what form of complaint the employee intended hers to be, or what her preferred process was for dealing with it. Equally it did not matter whether or not the employer recognised the employee’s complaint as a personal grievance. The only issues were whether the nature of the employee’s complaint was a personal grievance within the meaning of Section 103 of the Employment Relations Act 2000 and, if so, whether it conveyed the substance of the complaint sufficiently to the employer. The Court concluded that the employee’s letter satisfied both these tests.
In Dickson v Unilever New Zealand Ltd (2009), the Employment Court held that the statement that the employee would “fight for her job” was not enough to raise a personal grievance. Although there was no requirement for a personal grievance to be raised in writing, but if raised verbally the same requirements of particularity apply.
TIME LIMIT FOR RAISING A PERSONAL GRIEVANCE
Under New Zealand employment law there is a 90 Day time limit within which an employee can raise a personal grievance if they wish to pursue one with their employer (or ex-employer). This time limit is set by Section 114 of the Employment Relations Act 2000.
The personal grievance must be “raised” within 90 days of the date on which the action believed to constitute the personal grievance occurred or came to the notice of the employee. However the employer can consent to the personal grievance being raised outside the 90 day timeframe. The Courts have held that consent can be implied by how the employer responds when a grievance is raised.
If an employee raises their grievance outside of the time limit, and the employer does not agree to an extension, they will be unable to have their claim determined by the Employment Relations Authority or Court, unless there are “exceptional circumstances.”
In Commissioner of Police v Hawkins (2009), the Court of Appeal looked at an implied consent to raise a personal grievance outside of the time limit.
The employee was discharged from the Police force on assault charges. He raised a personal grievance for unjustified dismissal, but was outside the 90 day limit.
The employer did not expressly give the employee consent to file a personal grievance after the 90 day period, but the Employment Court held that the employer’s lack of protest and active engagement with the employee implied consent. The employer appealed.
The appeal was dismissed by the Court of Appeal. The issue was not whether or not the employer had turned its mind to the 90 day limit, but whether its conduct indicated that it had accepted an extension of the time limit. In this case the employer’s conduct had indicated this.
Extension of the Time Limit Due to Exceptional Circumstances
Employees can apply to the Authority for an extension of the 90 day period if the delay has been caused by exceptional circumstances. Exceptional circumstances include where:
The employee has been so affected or traumatised by the matter that they were unable to promptly consider raising a grievance within the time period;
In Creedy v Commissioner of Police (2008), the Supreme Court considered whether the employee should be permitted to bring a personal grievance out of time. The employee did not raise a grievance in a timely way in relation to his dismissal because, on the advice of his lawyer, he understood he did not need to do so.
The Supreme Court found that the employee did not make any arrangements with the lawyer to raise a personal grievance on his behalf. Further, there was no evidence that the employee told the lawyer that he wanted to challenge his departure, or even that the lawyer was acting for him within 90 days of his dismissal.
The Supreme Court considered the phrase “exceptional circumstances.’ In Wilkins & Field Ltd v Fortune (1998), the Court of Appeal defined “exceptional circumstance” as those which are “unusual, outside the common run, perhaps something more than special and less than extraordinary.” The Supreme Court preferred to characterise “exceptional circumstances” as simply “unusual’ because it accorded with ordinary English usage, was easier to apply, and:
“…the short limit of 90 days, and the potentially serious consequences for employees of not being able to bring a grievance, supports an interpretation which does not limit unduly the power to extend time.”
The Court went on to say:
“Having said that, we also emphasise that Parliament has imposed a 90 day limit to ensure that employers are notified promptly of alleged grievances. Time should therefore be extended only if exceptional circumstances are truly established and, in addition, the overall justice of the case (which includes taking account of the position of an employer facing a late claim) so requires.”