The legal process for dealing with employment problems
It’s a legal requirement that every employment agreement include a plain language explanation of the services available for resolving employment relationship problems (see below, “Plain language explanation of services”).
If problems arise between you and your employer, you should follow those steps. Usually this involves starting by talking the problem through with your employer to see if you can sort things out in good faith.
The two sides should clarify what their rights and obligations are and see if they can come to an agreement about how to fix things. If this doesn’t work, either side can contact the Employment Relations section of the Ministry of Business, Innovation & Employment on 0800 20 90 20 to decide what to do next.
From that point the next steps can include:
- mediation (see “Mediation” in this section)
- asking for help from a labour inspector (see “Labour inspectors” at the end of this chapter)
- going to the Employment Relations Authority (see “Taking your case to the Employment Relations Authority” in this section)
- going to the Employment Court (see “Going to the Employment Court: Appeals and other special cases” in this section).
Note: If you believe you have a personal grievance, you must raise it 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.
Plain language explanation of services
All agreements must contain a plain language explanation of the services available for resolving employment relationship problems. The following is an example of such a clause:
Services available for resolving employment relationship problems
If our employment relationship is to be as successful as possible, it is important that we deal effectively with any problems that may arise. This procedure sets out information on how problems can be raised and worked through.
What is an employment relationship problem?
It can be anything that harms or may harm our employment relationship, other than problems relating to negotiating the terms and conditions of employment.
Clarify the problem
If either of us feels that there may be a problem in our employment relationship, the first step is to check the facts and make sure that there is really a problem, and not merely a misunderstanding. You may want to discuss a situation with someone else to clarify whether a problem exists, but in doing so you should take care to respect the privacy of other employees and managers, and to protect the confidential information belonging to the employer. For example, you could seek information from:
- friends and family
- the Employment Relations Infoline on 0800 20 90 20
- pamphlets/fact sheets from the Employment New Zealand website www.employment.govt.nz
- your union, a lawyer, a Community Law Centre, or an employment relations consultant.
Discuss the problem
If either of us believes that there is a problem, it should be raised as soon as possible. This can be done in writing or orally. Provided you feel comfortable doing so, you should ordinarily raise the problem with your direct manager. Otherwise the problem can be raised with another appropriate manager. A meeting will usually then be arranged where the problem can be discussed. You should feel free to bring a support person with you to the meeting if you wish. We will then try to establish the facts of the problem and discuss possible solutions.
The next steps
If we are not able to resolve the problem by talking to each other, we each have a number of options:
- We can contact the Employment Relations Infoline on 0800 20 90 20 which can provide information and/or refer us to mediation.
- We can take part in mediation provided by the Employment Relations Service (or we can agree to get our own mediator). Mediation will normally be confidential. If we reach agreement, a mediator provided by the Employment Relations Service can sign the agreed statement, which will be binding on us.
- We can both agree to have the mediator provided by the Employment Relations Service decide our problem for us, in which case the decision will be binding on us.
- If mediation does not resolve the problem, either of us can refer the problem to the Employment Relations Authority for investigation.
- The authority can direct us to mediation, or can investigate the problem and issue a determination.
- If either of us is not happy with the authority’s determination, we can refer the matter to the Employment Court (The court may also tell us to go back and have more mediation).
- In limited cases, there is a right to appeal a decision of the Employment Court to the Court of Appeal. In some exceptional circumstances there may be a right to appeal a decision of the Court of Appeal to the Supreme Court.
If the problem is a personal grievance, then you must raise it within 90 days of when the incidents that give rise to the grievance occur or come to your attention. A personal grievance can only be raised outside the time frame with the agreement of the employer, or in exceptional circumstances.