Friday, November 23, 2012
Raj Pardeep Singh and Ashima Budgoojar
A personal grievance is any grievance that an employee may have against his or her employer or former employer in respect of unjustifiable dismissal, other unjustifiable action by the employer to the employee’s disadvantage, discrimination, sexual or racial harassment, duress connected with membership or non-membership of a union, or non-compliance with Part 6A of the Employment Relations Act.
If an employer has not followed the correct procedure or did not have a genuine reason for an employee’s dismissal, under employment law, an employee may have a personal grievance claim of unfair dismissal.
The Employment Relations Act gives all employees the right to pursue a personal grievance if they have any of the following complaints:
unjustifiable dismissal - unjustifiable action which disadvantages the employee discrimination
sexual harassment (by someone in authority or by co-workers)
duress over membership of a union or other
To bring a personal grievance for unjustified or unfair dismissal against an employer, an employee must start by raising the grievance with employer. There is a time limit of 90 days to do this. It is important for an employee to take action quickly. If an employee does not submit personal grievance within 90days the employer does not have to consider the grievance and then employee cannot take grievance to the Employment Relations Authority unless there are exceptional circumstances.
If an employee has been given notice of dismissal during a trial period, a personal grievance may not be raised for unjustified dismissal unless the personal grievance was about discrimination or harassment.
In all cases, the parties should seek to first resolve the matter at the workplace level. Both the employee and the employer may wish to seek advice on how to deal with the specifics of the case.
If a problem can’t be resolved, parties can go to mediation, either through the Department of Labour’s mediation services or through independent mediators. If this does not resolve the problem, employers or employees can go to the Employment Relations Authority for a determination. If either party is dissatisfied with the determination of the Employment Relations Authority, the issue can be taken to the Employment Court. The Employment Relations Authority or Court must consider the test of justification which assesses the fairness of an employer’s decision in relation to disciplinary action.
For instance, before dismissing or taking action against the employee, did the employer:
having regard to the resources available, sufficiently investigate the allegations against the employee
raise his or her concerns with the employee
give the employee a reasonable opportunity to respond to those concerns
genuinely consider the employee’s explanation (if any) in relation to the allegations.
An employer’s action cannot be viewed as unjustified solely because of mistakes made in the prescribed process, if those were minor and they did not result in the probability of the employee being treated unfairly.
Remedies for Personal grievances:
The Employment Relations Authority mayorder that an employee be put back in his or her previous position or a similar one that is not worse for the employee.
The Authority can order the employee to be reinstated until the personal grievance is heard, if the employee asks for this. The Authority may impose conditions when ordering reinstatement.
If an employee has lost wages or other money as a result of the grievance, the Employment Relations Authority can order the employer to pay all or part of the lost amount. Unless the Authority thinks that the employee was partly to blame, it must order the employer to pay at least all lost money up to three months' ordinary time wages, and may award more.
The Authority may order the employer to pay money to the employee for:
any effects on the employee personally, such as humiliation, loss of dignity or injury to his or her feelings
the loss of any benefit which the employee might reasonably have expected if the grievance had not arisen.
Recommendations in cases of sexual or racial harassment
When an employee has been sexually or racially harassed, the Employment Relations Authority may make recommendations to the employer on what to do about the harasser. This may include transfer, disciplinary action, or helping to change his or her behaviour to prevent them harassing again. The Authority can also recommend any other action to prevent further harassment of the employer any other employee; for example, that the employer develop and implement an educational programme in the workplace or adopt a formal harassment policy.
The Authority must reduce the remedies if the employee is found to be partly at fault in a grievance case.
For any further queries, or anyemployment matter, please contact
RAJ PARDEEP SINGH & ASHIMA BUDGOOJAR
Barrister & Solicitor Kenton Chambers Lawyers
Ph: +64 9 358 1900Fax: +64 9 358 1903
Level 8, 300 Queen Street, Auckland Central.
Email: firstname.lastname@example.org / email@example.com