Introduction
An employee who believes that he or she has a personal grievance may pursue that grievance under the Employment Relations Act 2000 ("ERA"). A primary issue to determine is whether a personal grievance exists. Tony Shaw, of Timpany Walton in Timaru, looks at the issue.
Definitions
Personal grievance
Personal grievance means any grievance that an employee may have against the employer or former employer because of a claim:
1. that the employee has been unjustifiably dismissed; or
2. that the employment, or 1 or more conditions of the 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
3. that the employee has been discriminated against in the employee's employment; or
4. that the employee has been sexually harassed in the employee's employment; or
5. that the employee has been racially harassed in the employee's employment; or
6. 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.
Unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any employment agreement.
Discrimination
An employee is discriminated against if the employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in the ERA, or by reason directly or indirectly of that employee's involvement in the activities of a union:
1. refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or
2. dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or
3. retires that employee, or requires or causes that employee to retire or resign.
Detriment includes anything that has a detrimental effect on the employee's employment, job performance, or job satisfaction. The prohibited grounds of discrimination are the prohibited grounds of discrimination set out in the Human Rights Act 1993, namely sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, or sexual orientation.
The definition of involvement in activities of a union is very wide and includes far more than just being an officer of a union or a member of a union.
An employee is sexually harassed if that employee's employer or a representative of that employer:
1. directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains:
a. an implied or overt promise of preferential treatment in that employee's employment; or
b. an implied or overt threat of detrimental treatment in that employee's employment; or
c. an implied or overt threat about the present or future employment status of that employee; or
2. by:
a. the use of language (whether written or spoken) of a sexual nature; or
b. the use of visual material of a sexual nature; or
c. physical behaviour of a sexual nature, directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative); and
that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.
An employee is racially harassed if the employee's employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly:
1. expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and
2. is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
3. has, either by its nature or through repetition, a detrimental effect on the employee's employment, job performance, or job satisfaction.
Duress
An employee is subject to duress in relation to membership or non-membership of a union or employees organisation if that employee's employer or a representative of that employer directly or indirectly:
1. makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or
2. makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or
3. exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee:
a. to become or remain a member of a union or employees organisation or a particular union or employees organisation; or
b. to cease to be a member of a union or employees organisation or a particular union or employees organisation; or
c. not to become a member of a union or employees organisation or a particular union or employees organisation; or
d. in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or
e. on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or
f. to participate in the formation of a union or employees organisation; or
g. not to participate in the formation of a union or employees organisation.
Choice of procedures
Where the circumstances giving rise to a personal grievance by an employee are also such that the employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may apply to the Authority for the resolution of the grievance or may make, in relation to those circumstances, a complaint under the Human Rights Act 1993.
Procedure
Raising a personal grievance
If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority as a personal grievance. A grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.
Time limit
Every personal grievance must be raised within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period. Where the employer does not consent to the personal grievance being raised after the expiration of the 90-day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that period. As a general rule the employee must show that the delay in raising the personal grievance was occasioned by exceptional circumstances.
Exceptional circumstances include:
1. where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the 90 day period; or
2. where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or
3. where the employee's employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or
4. where the employer has failed to comply with the obligation to provide a statement of reasons for dismissal.
Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation. Note also that there are obligations imposed on the employer to inquire into the facts of certain sexual harassment complaints and to take whatever steps are practicable to prevent any repetition of such behaviour. If the employer does not take whatever steps are practicable to prevent the repetition of such behaviour, the employee is deemed to have a personal grievance by virtue of having been sexually harassed in the course of the employment as if the behaviour were that of the employer.
Statement of reason for dismissal
Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal. Every employer to whom a request is made must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.
Remedies
Where the Authority or the Court determines that an employee has a personal grievance, it may, in settling the grievance, provide for any 1 or more of the following remedies:
1. reinstatement; or
2. the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance; or
3. the payment to the employee of compensation by the employee's employer, including compensation for:
a. humiliation, loss of dignity, and injury to the feelings of the employee; and
b. loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen; or
4. if the Authority or the Court finds an employee to have been sexually or racially harassed in his or her employment, recommendations to the employer:
a. concerning the action the employer should take in respect of the person who made the request or was guilty of the harassing behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person; or
b. about any other action that it is necessary for the employer to take to prevent further harassment of the employee concerned or any other employee.
Where the Authority or the Court determines that an employee has a personal grievance, the Authority or the Court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance and if those actions so require, reduce the remedies that would otherwise have been awarded accordingly.
Where the remedies sought by an employee in respect of a personal grievance include reinstatement and it is determined that the employee did have a personal grievance, the Authority must, whether or not it provides for any of the other remedies, provide, wherever practicable, for immediate reinstatement or reinstatement on a date specified by the Authority.
Interim reinstatement may also be ordered pending the hearing of the personal grievance, but this is to be subject to a signed undertaking that the employee will abide by any order that the Authority may make in respect of damages that are sustained by the other party through the granting of the order for interim reinstatement and that the Authority decides that the employee ought to pay.
Where the Authority or the Court determines that the employee has a personal grievance and that the employee has lost remuneration as a result of the personal grievance then the Authority must, whether or not it provides for any of the other remedies, order the employer to pay to the employee the lesser of a sum equal to that lost remuneration or to 3 months' ordinary time remuneration. Note however that the Authority may order an employer to pay more than 3 months' pay.
Disputes about employment agreements
Disputes
Where there is a dispute about the interpretation, application, or operation of an employment agreement, any person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10 of the ERA. This part of the ERA provides that the Authority has exclusive jurisdiction to make determinations about employment relationship problems generally, including disputes about the interpretation, application, or operation of an employment agreement. If the dispute relates to a collective agreement, the person or party pursuing the dispute must ensure that all union and employer parties to the agreement have notice of the existence of the dispute.
Keeping wage records
Wage records
Every employer must keep wages and time records as prescribed in the ERA and must make those records available upon request. Failure to comply with this obligation renders the employer liable to a penalty imposed by the Authority. Default in payment to an employee of any wages or other money payable to an employee may be recovered by the employee by action commenced in the prescribed manner in the Authority.
Penalties for breaching employment agreements
Penalties
Every party to an employment agreement who breaches that agreement is liable to a penalty under this ERA. Every person who incites, instigates, aids, or abets any breach of an employment agreement is also liable to a penalty imposed by the Authority. In the case of an individual, the penalty can be up to $5,000 and in the case of a company or other corporation, the penalty can be up to $10,000.
Compliance
Failure to comply
Where any person has not observed or complied with any provision of any employment agreement or other various obligations under the ERA (such as the good faith provisions, obligations to recognise unions, collective bargaining obligations) or any terms of settlement or decision that may be enforced by compliance order, or any order, determination, direction, or requirement made or given under this ERA by the Authority, the Authority may order that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance or non-compliance. In doing so, the Authority must specify a time within which the order is to be obeyed. A compliance order may be made subject to such terms and conditions as the Authority thinks fit.
Where any person fails to comply with a compliance order, the person affected by the failure may apply to the Court for the exercise of its powers under section 140(6) of the ERA whichincludes the power to make the following orders:
1. if the person in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceedings; or
2. if the person in default is a defendant, an order that the defendant's defence be struck out and that judgment be sealed accordingly; or
a. an order that the person in default be sentenced to imprisonment for a term not exceeding 3 months; or
b. an order that the person in default be fined a sum not exceeding $40,000; or
c. an order that the property of the person in default be sequestered.
Any order made or judgment given under the ERA by the Authority or the Court (including an order imposing a fine) may be filed in any District Court, and is then enforceable in the same manner as an order made or judgment given by the District Court.
Conclusion
If an employee brings a personal grievance complaint the procedures for dispute resolution, or for bringing an action before the Authority or the Court are laid out in the ERA.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Tony Shaw is a partner in the Lawlink firm of Timpany Walton. Tony specialises in commercial and general litigation, focusing increasingly on business litigation including employment law and alternative dispute resolution.
Web site: Timpany Walton
Email: tony.shaw@timpanywalton.co.nz
September 2000
An employee who believes that he or she has a personal grievance may pursue that grievance under the Employment Relations Act 2000 ("ERA"). A primary issue to determine is whether a personal grievance exists. Tony Shaw, of Timpany Walton in Timaru, looks at the issue.
Definitions
Personal grievance
Personal grievance means any grievance that an employee may have against the employer or former employer because of a claim:
1. that the employee has been unjustifiably dismissed; or
2. that the employment, or 1 or more conditions of the 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
3. that the employee has been discriminated against in the employee's employment; or
4. that the employee has been sexually harassed in the employee's employment; or
5. that the employee has been racially harassed in the employee's employment; or
6. 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.
Unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any employment agreement.
Discrimination
An employee is discriminated against if the employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in the ERA, or by reason directly or indirectly of that employee's involvement in the activities of a union:
1. refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or
2. dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or
3. retires that employee, or requires or causes that employee to retire or resign.
Detriment includes anything that has a detrimental effect on the employee's employment, job performance, or job satisfaction. The prohibited grounds of discrimination are the prohibited grounds of discrimination set out in the Human Rights Act 1993, namely sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, or sexual orientation.
The definition of involvement in activities of a union is very wide and includes far more than just being an officer of a union or a member of a union.
An employee is sexually harassed if that employee's employer or a representative of that employer:
1. directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains:
a. an implied or overt promise of preferential treatment in that employee's employment; or
b. an implied or overt threat of detrimental treatment in that employee's employment; or
c. an implied or overt threat about the present or future employment status of that employee; or
2. by:
a. the use of language (whether written or spoken) of a sexual nature; or
b. the use of visual material of a sexual nature; or
c. physical behaviour of a sexual nature, directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative); and
that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.
An employee is racially harassed if the employee's employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly:
1. expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and
2. is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and
3. has, either by its nature or through repetition, a detrimental effect on the employee's employment, job performance, or job satisfaction.
Duress
An employee is subject to duress in relation to membership or non-membership of a union or employees organisation if that employee's employer or a representative of that employer directly or indirectly:
1. makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or
2. makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or
3. exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee:
a. to become or remain a member of a union or employees organisation or a particular union or employees organisation; or
b. to cease to be a member of a union or employees organisation or a particular union or employees organisation; or
c. not to become a member of a union or employees organisation or a particular union or employees organisation; or
d. in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or
e. on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or
f. to participate in the formation of a union or employees organisation; or
g. not to participate in the formation of a union or employees organisation.
Choice of procedures
Where the circumstances giving rise to a personal grievance by an employee are also such that the employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may apply to the Authority for the resolution of the grievance or may make, in relation to those circumstances, a complaint under the Human Rights Act 1993.
Procedure
Raising a personal grievance
If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority as a personal grievance. A grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.
Time limit
Every personal grievance must be raised within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period. Where the employer does not consent to the personal grievance being raised after the expiration of the 90-day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that period. As a general rule the employee must show that the delay in raising the personal grievance was occasioned by exceptional circumstances.
Exceptional circumstances include:
1. where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the 90 day period; or
2. where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or
3. where the employee's employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or
4. where the employer has failed to comply with the obligation to provide a statement of reasons for dismissal.
Where a personal grievance involves allegations of sexual harassment, no account may be taken of any evidence of the complainant's sexual experience or reputation. Note also that there are obligations imposed on the employer to inquire into the facts of certain sexual harassment complaints and to take whatever steps are practicable to prevent any repetition of such behaviour. If the employer does not take whatever steps are practicable to prevent the repetition of such behaviour, the employee is deemed to have a personal grievance by virtue of having been sexually harassed in the course of the employment as if the behaviour were that of the employer.
Statement of reason for dismissal
Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal. Every employer to whom a request is made must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.
Remedies
Where the Authority or the Court determines that an employee has a personal grievance, it may, in settling the grievance, provide for any 1 or more of the following remedies:
1. reinstatement; or
2. the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance; or
3. the payment to the employee of compensation by the employee's employer, including compensation for:
a. humiliation, loss of dignity, and injury to the feelings of the employee; and
b. loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen; or
4. if the Authority or the Court finds an employee to have been sexually or racially harassed in his or her employment, recommendations to the employer:
a. concerning the action the employer should take in respect of the person who made the request or was guilty of the harassing behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person; or
b. about any other action that it is necessary for the employer to take to prevent further harassment of the employee concerned or any other employee.
Where the Authority or the Court determines that an employee has a personal grievance, the Authority or the Court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance and if those actions so require, reduce the remedies that would otherwise have been awarded accordingly.
Where the remedies sought by an employee in respect of a personal grievance include reinstatement and it is determined that the employee did have a personal grievance, the Authority must, whether or not it provides for any of the other remedies, provide, wherever practicable, for immediate reinstatement or reinstatement on a date specified by the Authority.
Interim reinstatement may also be ordered pending the hearing of the personal grievance, but this is to be subject to a signed undertaking that the employee will abide by any order that the Authority may make in respect of damages that are sustained by the other party through the granting of the order for interim reinstatement and that the Authority decides that the employee ought to pay.
Where the Authority or the Court determines that the employee has a personal grievance and that the employee has lost remuneration as a result of the personal grievance then the Authority must, whether or not it provides for any of the other remedies, order the employer to pay to the employee the lesser of a sum equal to that lost remuneration or to 3 months' ordinary time remuneration. Note however that the Authority may order an employer to pay more than 3 months' pay.
Disputes about employment agreements
Disputes
Where there is a dispute about the interpretation, application, or operation of an employment agreement, any person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10 of the ERA. This part of the ERA provides that the Authority has exclusive jurisdiction to make determinations about employment relationship problems generally, including disputes about the interpretation, application, or operation of an employment agreement. If the dispute relates to a collective agreement, the person or party pursuing the dispute must ensure that all union and employer parties to the agreement have notice of the existence of the dispute.
Keeping wage records
Wage records
Every employer must keep wages and time records as prescribed in the ERA and must make those records available upon request. Failure to comply with this obligation renders the employer liable to a penalty imposed by the Authority. Default in payment to an employee of any wages or other money payable to an employee may be recovered by the employee by action commenced in the prescribed manner in the Authority.
Penalties for breaching employment agreements
Penalties
Every party to an employment agreement who breaches that agreement is liable to a penalty under this ERA. Every person who incites, instigates, aids, or abets any breach of an employment agreement is also liable to a penalty imposed by the Authority. In the case of an individual, the penalty can be up to $5,000 and in the case of a company or other corporation, the penalty can be up to $10,000.
Compliance
Failure to comply
Where any person has not observed or complied with any provision of any employment agreement or other various obligations under the ERA (such as the good faith provisions, obligations to recognise unions, collective bargaining obligations) or any terms of settlement or decision that may be enforced by compliance order, or any order, determination, direction, or requirement made or given under this ERA by the Authority, the Authority may order that person to do any specified thing or to cease any specified activity, for the purpose of preventing further non-observance or non-compliance. In doing so, the Authority must specify a time within which the order is to be obeyed. A compliance order may be made subject to such terms and conditions as the Authority thinks fit.
Where any person fails to comply with a compliance order, the person affected by the failure may apply to the Court for the exercise of its powers under section 140(6) of the ERA whichincludes the power to make the following orders:
1. if the person in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceedings; or
2. if the person in default is a defendant, an order that the defendant's defence be struck out and that judgment be sealed accordingly; or
a. an order that the person in default be sentenced to imprisonment for a term not exceeding 3 months; or
b. an order that the person in default be fined a sum not exceeding $40,000; or
c. an order that the property of the person in default be sequestered.
Any order made or judgment given under the ERA by the Authority or the Court (including an order imposing a fine) may be filed in any District Court, and is then enforceable in the same manner as an order made or judgment given by the District Court.
Conclusion
If an employee brings a personal grievance complaint the procedures for dispute resolution, or for bringing an action before the Authority or the Court are laid out in the ERA.
Copyright The Lawlink Group Ltd 2000
Every effort has been made to ensure that this information is accurate. However, it is general introductory information only. It does not constitute legal advice and should not be relied on as such. Specialist legal advice should be sought in particular matters.
Tony Shaw is a partner in the Lawlink firm of Timpany Walton. Tony specialises in commercial and general litigation, focusing increasingly on business litigation including employment law and alternative dispute resolution.
Web site: Timpany Walton
Email: tony.shaw@timpanywalton.co.nz
September 2000
July, 2001
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