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Communtity Law Manual | Employment: Resolving problems | Health and safety: Retaliation because you stuck up for your rights in the workplace

Standing up for workers’ rights:Union rights and health and safety

Health and safety: Retaliation because you stuck up for your rights in the workplace

Personal grievance for retaliation around health and safety issues

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

You can take a personal grievance if your employer fires you or otherwise disadvantages you to get back at you (“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.

Proving your health and safety personal grievance

Employment Relations Act 2000, s 110A

The health and safety ground for a personal grievance covers the following kinds of retaliation from your employer:

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

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.

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.

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