A Wetpaint Site | TV Fandex 100

Personal Grievances

What is a personal grievance?
What is unjustifiable dismissal?
When can my employer dismiss me?
Is there anything my employer has to do before they decide to dismiss me?
What is constructive dismissal?
What is unjustifiable action?
What can I do if I think I’ve been unfairly treated?

What is a personal grievance?
A personal grievance action is a case against your employer for treating you unfairly or unjustly including where there has been discrimination or sexual harassment towards you.

It includes but is not limited to the following:
(a) that the employee has been unjustifiably dismissed; or (b) that the employee's employment, or 1 or more conditions of the employee's employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee's disadvantage by some unjustifiable action by the employer; or (c) that the employee has been discriminated against in the employee's employment; or (d) that the employee has been sexually harassed in the employee's employment; or (e) that the employee has been racially harassed in the employee's employment; or (f) that the employee has been subject to duress in the employee's employment in relation to membership or non-membership of a union or employees organisation. [1]

[1] s103 Employment Relations Act 2000

What is unjustifiable dismissal?

This is when your employer dismisses you unfairly. Any dismissal must be fair in the circumstances. The employer cannot dismiss you without good reason, for example your employer cannot dismiss you because they do not like the way you look.

There are situations where you may be fairly dismissed, and if it is for serious misconduct such as assault or theft your employer may not have to warn you first. A dismissal without prior warnings is known as a “summary dismissal.”

When can my employer dismiss me?

There are a number of grounds that an employer may use to justify dismissing an employee. These grounds include things like:

Not following instructions that your employer gives you (if they're reasonable and legal).
Personal abuse, violence or harassment towards your employer or co-workers.
Breaking work rules.
Staying away from work without a reason.
Dishonesty (including theft).
Misbehaviour outside work (if it's serious and reflects on your employer).
However, it is important to remember that even if your employer has a reason to dismiss you, they must go about doing this in the right way.

Is there anything my employer has to do before they decide to dismiss me?

Your employer must tell you if he / she isn’t happy with your work.

Unless it is *serious misconduct* (e.g. theft or assault) you must get warnings and a chance to improve your work before you’re dismissed.
Your employer must investigate what has happened and tell you what he / she finds out. You are entitled to put forward your side of the story and any reasons for what happened. Your employer must take this into account before making an unbiased (open-minded) decision about whether to dismiss you after considering both sides.

What is constructive dismissal?

Constructive dismissal is when you resign because the situation at work is so bad that you believe you have no choice.

This covers, for example:
When you resign because the employer threatens that if you don't, you'll be fired. When the employer breaks important terms of the employment agreement, or changes them without your agreement, and you resign because of this. (Make it clear that this is why you are resigning, and get advice if you're thinking of resigning rather than accepting the changes.) Being harassed or intimidated by the employer; eg. because you won't sign an agreement.

What is unjustifiable action?

This is where your employer does something unfairly that affects your conditions of work or your pay. The loss you suffer does not need to be financial, it can include loss of job security, or status (demotion).

What can I do if I think I’ve been unfairly treated?

It’s helpful to get some advice from YouthLaw, a Union, a Community Law Centre, a lawyer or Employment Relations Service (see phone numbers at back of this information sheet) first.

Your employment agreement should have a procedure to follow if you have a personal grievance. If yours does, follow that procedure unless it is less favourable than the one set out in the Employment Relations Act. If there is no procedure, you must follow the procedure set out in the Employment Relations Act.

The procedure is:

Step one

It may help as a first step to try to take the matter up with your employer or to choose another person such as a union representative to act for you to see if the matter can be sorted out informally. Most unions won’t help you unless you’re a union member. You may also apply to the Employment Relations Service to have your dispute referred to mediation (see Step six, below, for more details on mediation). If the basis for your action is due to discrimination or sexual harassment, and you are not able to resolve it informally, you will need to decide whether you are going to act under the Employment Relations Act (via a personal grievance action) or the Human Rights Act (using the complaints process at the Human Rights Commission). You must make a choice, as you can't use two processes at once for the exact same complaint.

Step two

If you have been dismissed write to your employer to ask the reason why. You have 60 days [2] from the date of your dismissal (or the day you realised you were dismissed) to do this. The employer then has 14 days from when they receive your letter to write back. [2] s120 Employment Relations Act 2000

If you have a personal grievance, whether you were dismissed or not, you have until 90 days after it happened or you knew about it to write a letter to your employer or a representative of your employer saying you are submitting a “personal grievance”. You can still submit your personal grievance after 90 days is up if the Employment Relations Authority or your employer agrees. To save time, the letter under step four below can be combined with this letter. [3] ss114 and 115 Employment Relations Act 2000

NOTE: It is very important to submit your personal grievance with the employer within this 90 day period. If you don’t, you run the risk of being unable to pursue your personal grievance claim.

Step three

Once this has been done, you and your employer should have a meeting to discuss your complaint and try to find a solution.

Step four

If you and your employer can’t come to an agreement, you must promptly write your employer a letter stating what your personal grievance is, how it has come about and what remedy you want.

A remedy is what you want from your employer to put the situation right. This may include:
A reference
Your old job back
Compensation for shame and humiliation caused to you
An apology

Step five

If your employer doesn’t agree he / she must write back to you as soon as possible (but no later than 14 days from when they get your letter) telling their side of the story and why they aren’t willing to give you the remedy you want.

Step six - MEDIATION

If you're not happy with the employer's response, or you don't get one within 14 days of them getting your letter, you can apply to the Employment Relations Service for a mediation meeting. This meeting is provided free of charge by the Department of Labour.

NOTE: You can arrange mediation at any stage during the personal grievance process and for any kind of workplace dispute.

A mediation is a meeting where you, your ‘advocate’ (supporter), your employer and their advocate sit around the table and try to reach an agreement with the help of an independent person (mediator). In mediation, you can discuss all the issues you have “without prejudice”, which means that anything said in the meeting cannot be raised if the matter goes to adjudication. If you reach a settlement with the employer in mediation, the mediator will draw up an agreement of settlement. If both you and the employer sign the agreement of settlement you are both bound to its terms and cannot take the matter any further.

If you can’t reach agreement at mediation, or the employer refuses to attend mediation, you can ask the Employment Relations Authority to adjudicate. You do this by filing a form called a “statement of claim” with the Authority. A statement of claim is a document that sets out the grounds for your personal grievance claim. It costs $75 to file this form in the authority. Adjudication involves a hearing where you will have to give evidence in a court-like setting. The Authority still may refer your case back to mediation if it feels there are issues that could be better resolved that way. If you don’t agree with the Authority’s decision you can go to the Employment Court, which is a much more formal and expensive process.

Representation

Your union may help you to present your case. If you don’t belong to a union, you may be able to get legal aid to help pay for a lawyer. You can also hire an employment consultant to represent you. They may agree to represent you on the basis that you will pay them their fees out of any award of money you might receive if your claim is successful.

What is a personal grievance?

A personal grievance action is a case against your employer for treating you unfairly or unjustly including where there has been discrimination or sexual harassment towards you.

It includes but is not limited to the following:

(a) that the employee has been unjustifiably dismissed; or
(b) that the employee's employment, or 1 or more conditions of the employee's employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee's disadvantage by some unjustifiable action by the employer; or
(c) that the employee has been discriminated against in the employee's employment; or
(d) that the employee has been sexually harassed in the employee's employment; or
(e) that the employee has been racially harassed in the employee's employment; or
(f) that the employee has been subject to duress in the employee's employment in relation to membership or non-membership of a union or employees organisation. [1]

[1] s103 Employment Relations Act 2000

What is unjustifiable dismissal?

This is when your employer dismisses you unfairly. Any dismissal must be fair in the circumstances. The employer cannot dismiss you without good reason, for example your employer cannot dismiss you because they do not like the way you look.

There are situations where you may be fairly dismissed, and if it is for serious misconduct such as assault or theft your employer may not have to warn you first. A dismissal without prior warnings is known as a “summary dismissal.”

When can my employer dismiss me?

There are a number of grounds that an employer may use to justify dismissing an employee. These grounds include things like:

Not following instructions that your employer gives you (if they're reasonable and legal).

Personal abuse, violence or harassment towards your employer or co-workers.

Breaking work rules.

Staying away from work without a reason.

Dishonesty (including theft).

Misbehaviour outside work (if it's serious and reflects on your employer).

However, it is important to remember that even if your employer has a reason to dismiss you, they must go about doing this in the right way.

Is there anything my employer has to do before they decide to dismiss me?

Your employer must tell you if he / she isn’t happy with your work.

Unless it is serious misconduct (e.g. theft or assault) you must get warnings and a chance to improve your work before you’re dismissed.

Your employer must investigate what has happened and tell you what he / she finds out. You are entitled to put forward your side of the story and any reasons for what happened. Your employer must take this into account before making an unbiased (open-minded) decision about whether to dismiss you after considering both sides.

What is constructive dismissal?

Constructive dismissal is when you resign because the situation at work is so bad that you believe you have no choice.

This covers, for example:

When you resign because the employer threatens that if you don't, you'll be fired.
When the employer breaks important terms of the employment agreement, or changes them without your agreement, and you resign because of this. (Make it clear that this is why you are resigning, and get advice if you're thinking of resigning rather than accepting the changes.)
Being harassed or intimidated by the employer; eg. because you won't sign an agreement.

What is unjustifiable action?

This is where your employer does something unfairly that affects your conditions of work or your pay. The loss you suffer does not need to be financial, it can include loss of job security, or status (demotion).

What can I do if I think I’ve been unfairly treated?

It’s helpful to get some advice from YouthLaw, a Union, a Community Law Centre, a lawyer or Employment Relations Service (see phone numbers at back of this information sheet) first.

Your employment agreement should have a procedure to follow if you have a personal grievance. If yours does, follow that procedure unless it is less favourable than the one set out in the Employment Relations Act. If there is no procedure, you must follow the procedure set out in the Employment Relations Act.

The procedure is:

Step one

It may help as a first step to try to take the matter up with your employer or to choose another person such as a union representative to act for you to see if the matter can be sorted out informally. Most unions won’t help you unless you’re a union member. You may also apply to the Employment Relations Service to have your dispute referred to mediation (see Step six, below, for more details on mediation). If the basis for your action is due to discrimination or sexual harassment, and you are not able to resolve it informally, you will need to decide whether you are going to act under the Employment Relations Act (via a personal grievance action) or the Human Rights Act (using the complaints process at the Human Rights Commission). You must make a choice, as you can't use two processes at once for the exact same complaint.

Step two

If you have been dismissed write to your employer to ask the reason why. You have 60 days [2] from the date of your dismissal (or the day you realised you were dismissed) to do this. The employer then has 14 days from when they receive your letter to write back.

[2] s120 Employment Relations Act 2000

If you have a personal grievance, whether you were dismissed or not, you have until 90 days after it happened or you knew about it to write a letter to your employer or a representative of your employer saying you are submitting a “personal grievance”. You can still submit your personal grievance after 90 days is up if the Employment Relations Authority or your employer agrees. To save time, the letter under step four below can be combined with this letter.

[3] ss114 and 115 Employment Relations Act 2000

NOTE: It is very important to submit your personal grievance with the employer within this 90 day period. If you don’t, you run the risk of being unable to pursue your personal grievance claim.

Step three

Once this has been done, you and your employer should have a meeting to discuss your complaint and try to find a solution.

Step four

If you and your employer can’t come to an agreement, you must promptly write your employer a letter stating what your personal grievance is, how it has come about and what remedy you want.

A remedy is what you want from your employer to put the situation right. This may include:

A reference

Your old job back

Compensation for shame and humiliation caused to you

An apology

Step five

If your employer doesn’t agree he / she must write back to you as soon as possible (but no later than 14 days from when they get your letter) telling their side of the story and why they aren’t willing to give you the remedy you want.

Step six - MEDIATION

If you're not happy with the employer's response, or you don't get one within 14 days of them getting your letter, you can apply to the Employment Relations Service for a mediation meeting. This meeting is provided free of charge by the Department of Labour.

NOTE: You can arrange mediation at any stage during the personal grievance process and for any kind of workplace dispute.

A mediation is a meeting where you, your ‘advocate’ (supporter), your employer and their advocate sit around the table and try to reach an agreement with the help of an independent person (mediator). In mediation, you can discuss all the issues you have “without prejudice”, which means that anything said in the meeting cannot be raised if the matter goes to adjudication. If you reach a settlement with the employer in mediation, the mediator will draw up an agreement of settlement. If both you and the employer sign the agreement of settlement you are both bound to its terms and cannot take the matter any further.

If you can’t reach agreement at mediation, or the employer refuses to attend mediation, you can ask the Employment Relations Authority to adjudicate. You do this by filing a form called a “statement of claim” with the Authority. A statement of claim is a document that sets out the grounds for your personal grievance claim. It costs $75 to file this form in the authority. Adjudication involves a hearing where you will have to give evidence in a court-like setting. The Authority still may refer your case back to mediation if it feels there are issues that could be better resolved that way. If you don’t agree with the Authority’s decision you can go to the Employment Court, which is a much more formal and expensive process.

Representation

Your union may help you to present your case. If you don’t belong to a union, you may be able to get legal aid to help pay for a lawyer. You can also hire an employment consultant to represent you. They may agree to represent you on the basis that you will pay them their fees out of any award of money you might receive if your claim is successful.

For further help please contact these authorities.

YouthLaw	Latest page update: made by YouthLaw , Dec 3 2008, 8:34 PM EST (about this update About This Update Edited by YouthLaw view changes - complete history)
	Keyword tags: None More Info: links to this page

Threads for this page

Post a new thread

There are no threads for this page. Be the first to start a new thread.

	Subject:
	Message:
	Quote:
	Tags:
	Category:	General Discussion

Personal Grievances

Threads for this page

Start a New Thread as Reply as Anonymous (Get credit for your thread)