Do you know anyone who has received a personal grievance from an employee or ex-employee? Hands down it is one of the most stressful and challenging things an employer can face. As you can imagine, in our line of work we are managing them continuously, so we are in a good position to help you understand the terminology, the correct process and your rights as an employer. All that helps take the mystery out of a claim, but they remain threatening and potentially very expensive. Reach out and get help to reduce the fall out. Rarely is this the time to prove you are an effective Lone Ranger!
What Are Personal Grievances?
In New Zealand, employees and ex-employees can raise personal grievances for various reasons, including unjustified dismissal, disadvantage, discrimination, or harassment. Essentially, a personal grievance is a formal complaint made by an employee or ex-employee against their employer, usually alleging unfair or unlawful treatment. They feel like they have been wronged, and there is a mechanism in place (set up by the Employment Relations Act 2000) to have an impartial person review and assess what went wrong.
The most common personal grievances relate to:
- Unjustified Dismissal: A technical term for when an employee believes their employment has been terminated without a fair reason or proper process.
- Unjustified Disadvantage: Another technical term, this time for when an employee claims they have been unfairly treated in a way that negatively impacts their employment conditions or ability to perform their role.
Your Obligations as an Employer
When a grievance is raised, your primary obligation is to carefully consider the claim and respond appropriately. Under the Employment Relations Act 2000, an employee must raise a personal grievance within 90 days of the action complained of (or the date they became aware of it), unless the employer agrees to an extension or the Authority grants leave. If the employee is still employed, or if the grievance includes an information request, you must respond promptly to comply with legal requirements.
Any response should be well-prepared, as it may ultimately be used in proceedings before the Employment Relations Authority (ERA). Seeking advice at this stage can ensure your response is accurate and aligns with your employment obligations. We know, for example, FixHR is more effective in settling down grievances at this stage than a response drafted in-house, under offence and without experience.
How to Respond to a Personal Grievance
When responding to a grievance, you should:
- Address any points you disagree with by either denying them or providing explanations.
- Present facts or evidence to dispute the allegations.
- Request further information from the employee or ex-employee if needed, such as evidence supporting their claims.
Again – without wishing to toot our own horn – the more professionally and efficiently you can do all this, the better the outcome. Any investigation or response process must be consistent with the duty of good faith and the requirement to act as a fair and reasonable employer in all the circumstances.
Handling Information Requests
Personal grievances often include requests for information from the employer. Under the Employment Relations Act and the Privacy Act, employees and ex-employees are entitled to access certain personal and employment-related information, such as information relating to them and time and wage records. Employers must also ensure that, when responding to information requests, they consider any privacy obligations owed to other employees or third parties before releasing documents.
Carefully assess these requests and respond within the relevant statutory timeframes. Failure to comply here often leads to further claims.
Possible Outcomes of a Personal Grievance
Personal grievances can be resolved in several ways, including negotiation, mediation, or, if necessary (and very rarely), a determination by the ERA. Depending on the outcome, the employee may be awarded compensation or, in rare cases, reinstatement to their previous role. Reinstatement is a primary remedy under the Employment Relations Act where practicable and reasonable, although it is not ordered in every case.
While most grievances are resolved before reaching the ERA, and that is always our goal here at FixHR, approach all communications with care, as they may later be used as evidence to support the employee’s claim.
Practical Tips for Defending a Personal Grievance
- Encourage Open Communication: Preventing grievances is almost always the best defence, and it is definitely the way we operate at FixHR. Encourage employees to raise concerns during their employment and address these at the time to avoid escalation. Prevention is always better than cure.
- Follow Fair Processes: Ensure that all employment processes, such as restructures or disciplinary actions, are fair, lawful, and well-documented. Seek professional guidance through these processes to reduce the risk of slipping into poor practice. Maintain detailed records to support your position if a grievance is raised.
- Understand Your Obligations: Familiarise yourself with your legal responsibilities under the Employment Relations Act to minimise risks and manage grievances effectively.
There are case studies in the media most days of well-meaning business owners who didn’t follow lawful process as they manage a staff member’s inaccurate time recording, drunken behaviour, ineffective performance, theft etc. Understanding your responsibilities when managing your staff, and having a good handle on personal grievances are crucial to protecting your business from legal risks.
For tailored advice on managing these process and many more, feel free to contact our team.
