Publications > Employment Law
Court of Appeal confirms Employment Court’s Pay Equity Decision
Employment Law Changes
Health and Safety At Work Act
How far does a free education go
Lessons for Boards about Legal Professional Privilege
Points of Note for Boards of Trustees after Green Bay Judicial Review
Changing Dangerous Work Practices – Grounds for Dismissal?
Misleading or Misunderstanding?
How not to employ a nanny from start to finish
Restraints of trade – protecting your business
Poor Performance and Misconduct
Hiring new employees
How to discipline employees
Personal Grievance Claims
A personal grievance claim is any grievance that an employee may have against their employer or former employer because of a claim that:
- The employee was unjustifiably dismissed;
- The employee’s employment was affected to the employee’s disadvantage by some unjustifiable action by the employer;
- The employee was discriminated against;
- The employee was sexually harassed in the employee’s employment;
- The employee was racially harassed;
- The employee was subject to duress in relation to their membership or non-membership in a union.
An employee may have an instance of unjustified dismissal if there was no good reason for the employer to dismiss the employee or if the dismissal was justified in the circumstances but the procedure by which the dismissal was done was done in an unfair and unreasonable way.
Discrimination occurs if the employer discriminates against the employee because of the employee’s:
- Sex (including pregnancy or childbirth status);
- Marital or family status;
- Religious or ethical belief;
- Ethnic or national origins;
- Political opinion;
- Employment status;
- Sexual orientation.
Discrimination can occur when the employer refuses or fails to offer the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion or transfer as other employees who have the same or similar qualifications, experience or skill working in the same or similar circumstances.
Discrimination may also involve dismissal or detriment by the employer in circumstances in which other employees, doing the same kind of work, are not, or would not be, treated in such a way.
An employee may have a grievance of sexual harassment against an employer if the employer:
- Directly or indirectly asks the employee for sex or some form of sexual activity, either promising preferential treatment in the job or threatening worse treatment or dismissal; or
- Directly or indirectly subjects the employee to unwelcome or offensive behaviour of a sexual nature and that, either by its nature or through being repeated so often, it has a negative effect on the employee’s employment, job performance, or job satisfaction.
An employee is racially harassed if their employer directly or indirectly shows hostility, ridicule or contempt, whether directly or indirectly, against the employee based on the visual material or physical behaviour, which the employee finds hurtful or offensive, and this behaviour either by its nature, or because it is repeated so often, has a detrimental effect on the employee’s employment, job performance, or job satisfaction.
Employees could be subjected to duress by their employer because of their membership or non-membership of a union or an employee’s organisation. Duress can occur for example when an employer says that an employee must belong or must not belong to a union or an employee’s organisation if they wish to keep their job, or when an employer offers or does not offer some incentive or advantage in order to get an employee to leave or join a union.
Process for dealing with a personal grievance
An employee who wishes to raise a personal grievance must raise the grievance with their employer within 90 days of the incident giving rise to the personal grievance occurring.
The philosophy of the Employment Relations Act 2000 is that employment relationships are more likely to be successful and beneficial to both parties if any problems arising are resolved promptly by the parties themselves.
Mediation is the primary problem solving mechanism for resolving employment relationship problems.
Mediation services are available through the Department of Labour. There is no cost involved other than the time of the employer and employee attending the mediation.
If the matter does not settle at a mediation an employee can decide to proceed with a claim in the Employment Relations Authority.
Employment Relations Authority (“Authority”)
The Authority is an investigative body whose role is to resolve employment relationship problems by establishing the facts and making a determination to the merits of the case. The Authority operates in an informal way basing its decisions on the merits of the case, not on legal technicalities.