Personal grievances can be stressful to be on the receiving end of (and sometimes upsetting where allegations are personal). However, having a proper understanding of next steps, options for resolution and/or being properly prepared to defend a claim can take the heat out of the situation. Here, knowledge really is power!
What is a personal grievance?
A personal grievance is a legal claim employees can raise against current or past employers in relation to matters such as dismissals, warnings, bullying/harassment, failing to comply with some sections of the Employment Relations Act 2000 (“the Act”), and the list goes on (you can see the full list in section 103 of the Act).
Probably the most common personal grievances are unjustified dismissal (which can include constructive dismissals – where an employee feels they have been forced to resign due to the employer’s conduct), and unjustified disadvantages where the employee’s employment, or one or more conditions of the employee’s employment, is/are/was affected to the employee’s disadvantage by some unjustifiable action by the employer – for example a demotion or suspension.
An employee generally has 90 days to raise a personal grievance from the date something happens, or comes to the employee’s notice. That timeframe can be extended in some situations, including if the employer agrees to it being raised late, which can be deemed to have happened if the employer accidentally engages with the employee about a personal grievance raised “out of time”. Sometimes, the 90 days can start after employment ends, for example if an employer starts advertising for a role previously made redundant – that can, in some circumstances, point to a “sham” redundancy.
What do you do next?
Responding to the personal grievance is important – although the timing will be informed by any clauses in employment agreements covering employment relationship problems (those clauses are mandatory) and whether the individual is still an employee.
Where the employment relationship is ongoing, delaying a response can further aggravate the issues, can be a breach of good faith and a breach of contract. If the employment relationship is over, there may be less urgency to respond (but ignoring the issue could result in proceedings being filed).
In terms of the response itself – be careful. Admitting liability on the record can be damaging. The same can be said of a blanket denial of liability when the employee has a legitimate basis for a claim – particularly, but not only, where allegations of bullying or harassment are involved, and an investigation may be appropriate.
Taking sound professional advice promptly and before responding to a personal grievance really is important to ensure steps are taken to protect the business/organisation and also to identify legal risks (which are not always obvious on first glance).
Personal grievance claims can often be resolved early, particularly where there is an appetite for settlement on both sides of the table, and often where representatives are instructed to conduct negotiations. Where there is no appetite for an early resolution and/or where one or both parties are not represented, mediation (via the Ministry of Business, Innovation and Employment, or a private mediator) is often the next step.
The majority of disputes are resolved between the parties and/or at mediation. However, where that does not occur, and if the employee wishes to progress the personal grievance, the next step is filing a Statement of Problem at the Employment Relations Authority. The employer is then required to file a Statement in Reply. Despite the intention of the Authority to be a low level and efficient forum for dealing with employment disputes – the reality is that it is a complicated environment and process, and many employers have been stung by seeking to defend themselves – including to a cost far greater than they would have spent on legal representation.
For more information
If a personal grievance comes your way, and you would like expert, efficient and pragmatic advice and support, feel free to reach out to our team. For more information, feel free to contact 04 472 0020.
See more of our employment law articles here.
