Personal grievances

What is a personal grievance?

Employment Relations Act 2000, Part 9

A “personal grievance” is a legal claim you can bring against your employer if you think they’ve dealt with you illegally or unfairly. You can use the personal grievance process if your employer has dismissed you unfairly or done something else you think is unjustified, such as suspending you, giving you a written warning, or demoting you. A personal grievance is also available on certain other grounds such as discrimination and sexual harassment. (See below, “On what grounds can I bring a personal grievance?”.)

Employment Relations Act 2000, ss 102, 103

There’s a particular process you must follow when you bring a personal grievance. You must first raise the issue with your employer within 90 days. Then, if you’re not satisfied with their response, a free mediation service is available. If mediation doesn’t work, you can take your grievance to the Employment Relations Authority. (See “Raising a personal grievance: The process” in this section.)

Employment Relations Act 2000, s 103(1)

On what grounds can I bring a personal grievance?

The personal grievance process is available only for a specific set of grounds:

  • unjustified dismissal
  • unjustified disadvantage
  • discrimination
  • sexual harassment
  • racial harassment
  • “duress” – that is, pressure from the employer about union membership or union activity
  • a breach of your rights around agreed hours, availability clauses, cancellation of shifts, or restrictions on other (“secondary”) employment
  • retaliation against you because of a health and safety dispute.

These grounds are explained in detail in the following sections.

Grounds for bringing a personal grievance

Unjustified dismissal

When will a dismissal be unjustified?

Employment Relations Act 2000, s 103

If you bring a personal grievance for unjustified dismissal, the Employment Relations Authority will decide the case objectively, by looking at whether your employer’s actions were what a fair and reasonable employer could have done in the situation.

Employment Relations Act 2000, s 103A

This includes looking at whether:

  • your employer had a good reason for dismissing you (this is called “substantive fairness”), and
  • your employer followed a fair process in dismissing you (“procedural fairness”).

Reasons for a dismissal: What is “substantively” fair?

There can be many valid reasons for dismissing an employee. Whether or not a reason is substantively fair will depend on the particular circumstances.

Reasons for dismissal can generally be grouped into two categories:

  • serious misconduct – this will justify immediate (“summary”) dismissal (see below, “Examples of serious misconduct”), or
  • less serious misconduct – in these cases your employer will usually have to give you warnings and an opportunity to change your conduct or to improve your performance before you can be justifiably dismissed (see below, “Examples of less serious misconduct” and “The process: When will a dismissal be procedurally fair?”).

Examples of serious misconduct

Possible examples of serious misconduct include:

  • Fighting and assault – relevant factors to consider here may include:
    • who initiated the incident
    • whether it was assault or just horseplay
    • the result of medical examinations
    • whether there were single or multiple blows
    • whether it was assault or justifiably restraining the other person.
  • Direct disobedience – for example, openly and deliberately refusing to obey a lawful and reasonable instruction given by your employer or supervisor or some other person in authority.
  • Dishonesty – relevant factors to consider here may include:
    • Was the dishonesty proven or was it only suspected? Suspicion alone is not usually enough to justify dismissal.
    • Was there an inquiry, and if so, was it done fairly and fully? Were you given a chance to explain your behaviour?
    • Was the dishonesty at work or outside work? Whether any dishonesty outside the job will justify dismissal will depend on the nature of your job and whether you occupy a position of trust.
    • Did you lie or did you merely not offer information? Job applicants don’t have to volunteer information that may not be to their advantage, but they can’t provide false information.
  • Insubordination – for example, offensive language or publicly criticising your employer.
  • Breaching work rules – for example, work rules that bar you from:
    • possessing drugs and other illegal substances
    • being drunk or otherwise intoxicated while working
    • having company property in your possession when you’re not authorised to
    • sleeping at work.
  • Disclosing confidential information – you owe a duty to your employer to uphold confidentiality during the term of your employment.

    Note: You may be able to release confidential information about your employer if it relates to serious wrongdoing occurring at work (see “Protected disclosures: Protection for ‘whistle-blowers’” in the chapter “Employment conditions and protections”).

Examples of less serious misconduct

Examples of less serious forms of misconduct that could justify a dismissal are:

  • absenteeism and taking unauthorised leave
  • unsatisfactory work performance
  • sending offensive emails
  • misconduct outside of work hours
  • abusive language.

The process: When will a dismissal be procedurally fair?

Employment Relations Act 2000, s 103A

Whether your employer followed a fair process in dismissing you will depend on the particular circumstances. The Employment Relations Authority will consider:

  • whether your employer adequately investigated the allegations against you (but the Authority will take into account the resources available to the employer)
  • whether your employer’s concerns were properly communicated to you
  • whether you had a reasonable opportunity to respond to any concerns your employer raised
  • whether your employer considered your explanation with an open mind before making a decision.

The Authority won’t assess your employer’s processes in a technical or pedantic way. Your dismissal won’t be found to be unjustified if there were only minor defects in the process and these didn’t result in you being treated unfairly.

What if I’m on a trial period?

Employment Relations Act 2000, s 67A

You can’t bring a personal grievance if you’re dismissed during a valid trial period.

For a trial arrangement to be valid:

  • it must be stated in writing in your agreement, and
  • it must be for a specified period, beginning when you start work and lasting no more than 90 days, and
  • your agreement must state that your employer can dismiss you during the trial period and that you’re not entitled to bring a personal grievance or take other legal action in response.

A trial period won’t be valid if you’ve previously been employed by that employer, even if this was only for an hour.

If the trial arrangement isn’t valid, or if you’re notified of the dismissal only after the trial period has ended, you have the same right to bring a personal grievance for unjustified dismissal as any permanent employee.

Note: Working under a valid trial arrangement doesn’t prevent you bringing a personal grievance on grounds other than unjustified dismissal, such as unjustified disadvantage or discrimination. A “trial” period is different from a “probation” period. An employee on “probation” can still bring a personal grievance for unjustified dismissal if they’re dismissed during or at the end of the probation period (see “Probation and trial periods” in the chapter “Being employed”).

Can I be dismissed if I’m sick or injured?

You’re legally entitled to a certain amount of sick leave after you’ve worked for your employer for six months (see “Sick leave” in the chapter “Employment conditions and protections”). However, your employer doesn’t have to keep your job open indefinitely if you’re sick or injured for a long period.

Before your employer would be justified in dismissing you on the grounds of sickness or injury, they would have to consider a number of factors, which may include:

  • the terms of your employment agreement, including any provisions for sick leave and sick pay
  • whether you would have been employed long-term if you hadn’t become ill or been injured
  • the nature of your job – for example, is it a key position?
  • the nature of your illness or injury, how long it has gone on for, and the prospects of you getting better
  • how long you’ve been employed – for example, are you a long-standing and valued employee?

If you are dismissed, your employer must follow a fair process – for example, you should be warned that if you don’t return to work your job will be at risk.

What if my employer effectively forces me to resign?

If you’ve resigned from your job in response to the way your employer has behaved towards you, this may amount to unjustified dismissal; it’s known as “constructive” dismissal.

Behaviour by an employer that could amount to constructive dismissal includes:

  • coercion and threats
  • making major changes to your employment agreement without your consent
  • telling you to resign or else be dismissed
  • deliberately following a course of conduct with the intention of forcing you to resign
  • failing to make your workplace safe
  • falsely accusing you of misconduct.

Can a redundancy be an unjustified dismissal?

Yes. The question of whether what seems to be a redundancy in fact amounts to an unjustified dismissal depends on whether the decision to make you redundant was one that a fair and reasonable employer could have made in that situation, and whether your employer followed a fair process in coming to this decision. (For information about those requirements, see “Ending an employment relationship” in the chapter “Being employed”.)

Do I have to be given a reason if I’m dismissed?

Employment Relations Act 2000, s 120

If you’re dismissed you can, within 60 days, ask your employer to give the reasons, and your employer must give you reasons in writing within 14 days.

If you’re dismissed during a valid trial period, you don’t have that specific right to require your employer to give you reasons in writing after you’ve been dismissed. However, if you ask for reasons at the time that you’re told of the dismissal, the employer’s duty of good faith legally requires them to provide the reasons, even when you’re a trial employee.

Unjustified disadvantage

Employment Relations Act 2000, ss 1031b, 103A

You can bring a personal grievance if your employer does anything unjustifiable that affects your employment or conditions of work in a way that disadvantages you. This might include:

  • demoting you
  • suspending you without pay
  • withdrawing work
  • transferring you
  • giving you an unjustified warning
  • withdrawing a benefit, such as the use of a company vehicle.

The Employment Relations Authority will decide the case objectively, by looking at whether your employer’s actions were what a fair and reasonable employer could have done in the situation.

Note: Generally, a personal grievance claiming unjustified disadvantage will only be successful if it concerns something you were entitled to under your employment agreement, and won’t succeed if your employer had a discretion whether or not to provide the particular benefit or condition.

Discrimination

Employment Relations Act 2000, ss 103, 105, 107

You’ll usually be able to bring a personal grievance based on discrimination if your employer discriminates against you on the basis of your:

  • colour
  • race
  • ethnic or national origins
  • sex (including pregnancy or childbirth status)
  • marital or family status
  • age
  • disability
  • religious or ethical belief
  • political opinion
  • employment status
  • sexual orientation
  • involvement in union activities, which includes claiming (or helping others to claim) a benefit under an employment agreement, or taking or intending to take employment relations education leave.

Discrimination can occur when your employer does any of the following based on one of the illegal grounds of discrimination:

Employment Relations Act 2000, s 104

  • dismissing you or disadvantaging you in some way
  • refusing you, or failing to offer you, the same:
  • terms of employment
  • conditions of work
  • fringe benefits
  • opportunities for training, promotion, or transfer as other employees with similar quali­fications and in similar circumstances
  • requiring you to resign or retire.

Employment Relations Act 2000, ss 105, 106

The illegal grounds of discrimination in employment law (except involvement in union activities) are the same as the grounds in the Human Rights Act 1993. However, in both cases the right to freedom from discrimination in employment is not absolute. There are some circumstances where different treatment of employees on the illegal grounds is acceptable (see the chapter “Discrimination”).

Note: If you suffer discrimination in the workplace you can bring a personal grievance under the Employment Relations Act 2000 or you can complain to the Human Rights Commission under the Human Rights Act 1993 (see the chapter “Discrimination”). You can’t do both.

Employment Relations Act 2000, s 112

Sexual harassment

Sexual harassment by employers or others in authority

Employment Relations Act 2000, ss 103, 108

You may have a personal grievance if your employer, or a representative of your employer, sexually harasses you. In this context, sexual harassment means where the other person:

  • asks you for sex or some form of sexual activity while either promising preferential treatment or threatening worse treatment or dismissal if you refuse, or
  • subjects you to unwelcome or offensive behaviour through words or physical behaviour of a sexual nature, and this has a negative effect on your employment, job performance or job satisfaction. It’s irrelevant whether or not you told the person harassing you that their behaviour was unwelcome or offensive.

Sexual harassment by co-workers, customers or clients

Employment Relations Act 2000, ss 103, 108, 117, 118

You may also have a personal grievance against your employer for sexual harassment if one of your co-workers or one of your employer’s customers or clients sexually harasses you and your employer doesn’t take the necessary action. (For what sexual harassment means in this context, see “Sexual harassment by employers or others in authority” above.)

If you’re sexually harassed by a co-worker, customer or client, you can complain to your employer. Your employer must then investigate your complaint. If the employer is reasonably satisfied that your complaint is well-founded, they must take all possible steps to stop the harassment happening again.

If the harassment happens again after you’ve complained, and your employer hasn’t taken steps to prevent it, you can bring a personal grievance against your employer.

Note: If you suffer sexual harassment in the workplace you can bring a personal grievance under the Employment Relations Act or you can complain to the Human Rights Commission under the Human Rights Act (see the chapter “Discrimination”). You can’t do both.

Employment Relations Act 2000, s 112

Racial harassment

Racial harassment by employers or others in authority

Employment Relations Act 2000, ss 103, 109

You may have a personal grievance if you’re racially harassed by your employer or by a representative of your employer. Racial harassment in this context means where the other person uses language (whether written or spoken), visual material or physical behaviour that directly or indirectly:

  • expresses hostility against you, or brings you into contempt or ridicule, based on your race, colour or ethnic or national origins, and
  • is hurtful or offensive to you (whether or not you convey this to the other person), and
  • has a negative effect on your employment, job performance, or job satisfaction, either because of the kind of language, material or behaviour that it is, or because it’s repeated.

Racial harassment by co-workers, customers or clients

Employment Relations Act 2000, ss 103, 109, 117, 118

You may also have a personal grievance against your employer for racial harassment if one of your co-workers or one of your employer’s customers or clients racially harasses you and your employer doesn’t take the necessary action (for what racial harassment means in this context, see above “Racial harassment by employers or others in authority”).

If you’re racially harassed by a co-worker, customer or client, you can complain to the employer. Your employer must then investigate your complaint. If the employer is reasonably satisfied that your complaint is well-founded, they must take all practicable steps to stop the harassment happening again.

If the harassment happens again after you’ve complained, and your employer hasn’t taken practicable steps to prevent it, you can bring a personal grievance against your employer.

Note: If you suffer racial harassment in the workplace you can bring a personal grievance under the Employment Relations Act or you can complain to the Human Rights Commission under the Human Rights Act (see the chapter “Discrimination”). You can’t do both.

Employment Relations Act 2000, s 112

Duress: Pressure from employers about union membership or union activity

Employment Relations Act 2000, s 110

You may have a personal grievance for “duress” if your employer or one of their representatives:

  • says you must (or must not) belong to a union or an employee’s organisation in order to keep your job, or
  • uses undue influence, offers of incentives, or threats of disadvantages to make you leave (or join) a union or employee’s organisation, or
  • uses undue influence, offers of incentives, or threats of disadvantages to stop you acting on behalf of other employees.

    Note: Undue influence has been held by the courts to mean something similar to coercion or threats.

Breaching your rights around hours and second jobs

Employment Relations Act 2000, ss 67C-67H, s 103(1)(h), (i)

From April 2016 you can bring a personal grievance if your employer:

  • has disadvantaged you by breaching the rule that any verbal agreement between you about your hours must be stated in your written employment agreement
  • has disadvantaged you by breaching the rules around availability clauses and “zero-hour” contracts, or if they treated you unfairly because you exercised your right to turn down work when you didn’t have a valid availability clause in your agreement
  • has disadvantaged you by breaching the rules around cancelling shifts
  • has disadvantaged you by unreasonably preventing you from also working for other employers.

For details of your rights around work hours, see the chapter “Employment conditions and protections”, under “Hours of work”. For your rights around working second jobs, see the chapter “Being employed”, under “Starting work and negotiating an agreement”.

Retaliation because of a health and safety dispute

Employment Relations Act 2000, ss 103(1)(j), 110A; Health and Safety at Work Act 2015, s 89

From April 2016, you can bring a personal grievance if your employer fires you or otherwise disadvantages you in retaliation for some action you’ve taken relating to health and safety.

This includes, for example, if:

  • you’ve stopped work on health and safety grounds
  • you’ve raised a health and safety issue with the employer or with the health and safety representative for your work
  • you’ve exercised your powers as the workplace health and safety rep – like instructing workers there not to do dangerous work, or
  • you’ve given assistance or information to a health and safety inspector from Worksafe New Zealand.

The kinds of retaliation that’s covered by this personal grievance ground include:

  • firing you
  • forcing you to quit or retire
  • not giving you the same conditions or benefits as other similar workers
  • not giving you the same opportunities for training, promotion or transfer as other similar workers.

For your personal grievance to succeed, the health and safety issue must have been “a substantial reason” for the employer’s retaliation. However, the law assumes that it was a substantial reason, and it will be up to the employer to prove that it wasn’t.

The employer will have a defence if they prove that what they did was reasonable in the situation and that they did it to comply with the health and safety laws.

You can also have a personal grievance claim if your employer coerces you or pressures you to try to get you to do something, or not do something, relating to health and safety – for example, if they pressure you not to cooperate with health and safety inspectors.

Workers from overseas and personal grievances

Taking a personal grievance if you’re on a work visa

If you’re in New Zealand on a work visa that’s dependent on you having a job, and you’re then legitimately dismissed, you’re legally required to leave the country.

However, if you believe you were dismissed unjustifiably, you should get legal help. You should also consider informing Immigration New Zealand: they may grant you a temporary visa or decide to change the conditions on your existing visa to allow you to stay in New Zealand while you take the personal grievance. Having a legitimate personal grievance is, however, no guarantee that Immigration New Zealand will change your visa or visa conditions to allow you to stay in the country.

Note: If you plan to bring a personal grievance, it’s important that you deal with the issue of your visa early on. If your current visa expires, you’ll then be in New Zealand unlawfully and this will restrict your ability to apply for future visas.

If a migrant employee has been treated particularly poorly by an employer then Immigration New Zealand may be interested in prosecuting that employer.

Raising a personal grievance: The process

How do I raise a personal grievance with my employer?

Employment Relations Act 2000, s 114

You do this by making your employer or their representative aware (or taking reasonable steps to make them aware) that you believe you have a personal grievance and that you want the employer to address it. For example, this could be by approaching the employer directly or by writing them a letter.

Note: A template personal grievance letter is available at www.communitylaw.org.nz.

How much time do I have to raise a personal grievance?

Employment Relations Act 2000, ss 114, 115

You must raise the personal grievance with your employer within 90 days after the action that led to the personal grievance, or within 90 days after you became aware of the action, whichever is later.

You can raise a personal grievance after the 90-day period only if your employer agrees to this or if the Employment Relations Authority allows it. The Authority will only allow this if there are exceptional circumstances and it would be “just” to allow it.

What happens after I raise a personal grievance?

If you’ve raised a personal grievance with your employer and you’re not satisfied with their response, a free mediation service is available to help resolve the problem. If mediation doesn’t work, you can take a case to the Employment Relations Authority (see “Processes for resolving employment relationship problems” in this chapter).

Note: If you decide to take action against your employer in the Employment Relations Authority, you must do this within three years after you raise the personal grievance with your employer.

Employment Relations Act 2000, s 114

Remedies for a personal grievance

If you take a personal grievance to the Employment Relations Authority you can ask the Authority to take one or more of the following types of action. (For information about going to the Authority, see “Processes for resolving employment relationship problems” in this chapter.)

Employment Relations Act 2000, s 123

Reinstatement

The Employment Relations Authority can order that you be put back in your previous position or in a position that’s no less advantageous to you. The Authority can also order that you be reinstated temporarily (interim reinstatement) until it decides your case.

Employment Relations Act 2000, ss 123, 125-127

Reimbursement for lost wages or money

Employment Relations Act 2000, ss 123, 124, 128

If the Employment Relations Authority decides you’ve lost wages or other money as a result of what your employer did, the Authority must order the employer to reimburse you for this, up to a maximum of three months’ ordinary time wages, although the Authority has a discretion to award you more. The amount that you would otherwise be awarded can be reduced if you contributed to what happened.

Compensation

Employment Relations Act 2000, s 123

The Employment Relations Authority can order your employer to pay you compensation for:

  • the way in which you’ve been affected personally, such as humiliation, loss of dignity, or injury to feelings
  • the loss of any benefits that you might otherwise have expected to get.

Recommendations for actions to be taken by the employer

Employment Relations Act 2000, s 123

If you’ve suffered sexual or racial harassment, the Employment Relations Authority can make recommendations to your employer on what to do about the harasser. This may include transferring them, taking disciplinary action, or taking rehabilitative action to prevent them harassing again. (See “Sexual harassment” and “Racial harassment” under “Grounds for bringing a personal grievance” in this chapter.)

Whatever the ground for your personal grievance, if workplace conduct or practices were a significant factor the Authority can make recommendations to your employer about what should be done to prevent similar problems happening.

Find your local

Community Law Centre

View all law centre listings

Key | Community Law Centres | Outreach Clinics

back to top