Preston Russell Law - Legal Services for Southern People

Raising a Personal Grievance - Time is of the Essence

Monday, November 28, 2011 by Mary-Jane Thomas, partner category Work to Rule

 One of the rules in Employment law is that a personal grievance must be raised within 90 days of the date on which the action amounting to the personal grievance arose or came to the notice of the employee – whichever is the later. If it not raised on time the Employment Relations Authority have to decide if the grievance can proceed.

A recent Auckland Employment Relations Authority decision considered the point of when a personal grievance is raised. 

 Ms H’s employment was verbally terminated by the employer on 22 April 2011. However Ms H did not lodge her statement of problem with the Authority until 5 August 2011 (some 105 days later).

The employer said this was the first time it became aware of Ms H’s grievance and therefore the grievance was out of time. 

 Ms H disputed that. Ms H said that she had telephoned the employer on 26 April and told him she was unhappy about the termination and believed the reasons for dismissal were unfair and not within the law. Further Ms H  mediation or compensation, or she would resort to litigation. Ms H said that she had her employer refuse to talk to her about the matter and hung up on her.

Ms H then e-mailed the employer restating her unhappiness with the employer’s reasoning for dismissal and that according to the Labour Department there were three options “compensation, mediation and court”. Ms H then did nothing more until filing in the ERA.

Under the Employment Relations Act 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.”

Past cases into this matter have attempted to set out when this test has been met and have found that it requires the employee to set out the grievance sufficiently to enable the employer to address it. So it is insufficient, and therefore not a raising of the grievance, for an employee to advise an employer that the employee simply considers that he or she has a personal grievance or even by specifying the statutory type of the personal grievance as, for example, unjustified disadvantage in employment.

In this case Ms H argued that the reply she received to her e-mails showed that the employer was aware of her grievance and her chosen course of action.

The employer argued  that Ms H did not sufficiently specify what her grievance was in such a way as to enable the employer to respond.

The Authority held that the  telephone conversation and e-mail on 26 April did not meet the test because neither made it objectively clear that she had commenced a grievance process and that legal consequences could follow if her grievance was not resolved in a manner she had specified.

Those communications did not go further than merely expressing her dissatisfaction and unhappiness with the reasons the employer had given for ending her employment. The mere expression of unhappiness or dissatisfaction to an employer about its decision does not amount to the raising of a grievance.

This decision seems a bit harsh to me but it does bring attention to how careful employees must be to act promptly or risk losing their personal grievance rights.