Section 103 of the Act defines a personal grievance as; an unjustified dismissal; a claim that the employee has been disadvantaged by an unjustified act by the employer; discrimination; sexual harassment; racial harassment; or the employee has been subject to duress about their membership or non membership of a union or employee organization.
We often get asked by employers if they can take a personal grievance against their employees for their actions – but the answer is always the same NO. A personal grievance is only open to an employee against the actions of an employer. There are avenues open for employers to take action against their employees but that will be the subject of a later article.
In general law the principal applied is that someone is innocent until they are proven guilty. In employment law employers feel that they are guilty until they can prove their innocence. This view is given credence by the fact that the Act makes special provisions for employers when dealing with an unjustified dismissal or an unjustified disadvantage claim.
Under section 103 A the test to be applied in judging whether an action by the employer was justified is an objective one considering whether the employer’s actions and how the employer acted, were what a fair and reasonable employer would have done in all the circumstances at the time of the dismissal or disadvantaging action.
When considering whether an employer has acted appropriately two things become paramount.
Was there substantive justification for the employer’s actions? I.e. was the reason they based their decision upon valid in all of the circumstances? And, did the employer follow a fair process in arriving at the decision that precipitated their action?
We often find that employers have a reasonably good reason for doing what they did but where they often fall down is they do not follow a fair procedure. The Employment Relations Authority (ERA) or the Employment Court will more often than not find fault with the procedure used rather than the reason justifying the action of the employer.
If the employer is found to be at fault there are statutory remedies available to a disgruntled employee. Remedies for Unjustified Dismissal Include: reinstatement to the previous position; reimbursement of lost wages or other money lost; compensation for humiliation, loss of dignity and injury to the feelings of the employee; and/or compensation for loss of any benefit.
There is also a sting in the tail of the remedies for employees who may have contributed to the personal grievance in the first place. Even though the employer may be found to have been wrong and remedies awarded against them the ERA or the Court can reduce what they would have otherwise awarded because of the employee’s contribution to their own demise.
This reduction in remedies is something that we are seeing more and more of in the current climate.
If you are an employee and think that your employer has done something that is unjustified then talk to a union, the Community Law Centre or a lawyer. If you are an employer and you are on the receiving end of a personal grievance claim then talk to your business advisor or a lawyer smartly, don’t just hope it will disappear – it won’t.
Brian Richardson is an Employment and HR adviser at Preston Russell Law – contact him on Brian.Richardson@prlaw.co.nz
