Taking action through a personal grievance
What is a personal grievance?
A “personal grievance” is one of the main ways for workers to take a legal claim against their employer if they believe their employer has acted unfairly or unreasonably towards them.
You can use the personal grievance process if your employer has fired (“dismissed”) you unfairly or done something else you think is unjustified, such as unfairly or unreasonably putting you off work (“suspending” you), giving you a written warning, or giving you a lesser job (“demoting” you). A personal grievance is also available on certain other grounds, like discrimination and sexual harassment (see below).
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 (ERA) (see: “Raising a personal grievance: The process”).
On what grounds can I bring a personal grievance?
The personal grievance process is available only for a specific set of grounds:
- unjustified dismissal – when you’ve been unfairly fired
- unjustified disadvantage – when your employer did something unreasonably or unfairly that negatively affected your employment conditions – for example taking away a benefit
- sexual harassment
- racial harassment
- duress – that is, pressure from the employer about union membership or union activity
- breaches around hours and shifts – a breach of your rights around agreed hours, availability clauses, cancellation of shifts, or restrictions on other (“secondary”) employment
- health and safety retaliation – retaliation against you because of a health and safety dispute.
These grounds are explained in detail in the following sections.
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 with a particular employer, and you’re then legitimately dismissed, you’re legally required to leave the country unless you’re able to change your visa conditions or get a new visa.
However, if you believe you were dismissed unjustifiably, you should get legal help. You should also consider telling 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. However, having a legitimate personal grievance is 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 make it difficult 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 (see: “Migrants and other vulnerable workers”).
Raising a personal grievance when you’re working for a labour hire company (“triangular employment”)
What is triangular employment?
Triangular employment is where you’re employed by one employer but you spend your day working directly for someone else – for example you’re employed by a labour hire company but work day-to-day for another company on a building site. This can be a short-term or long-term arrangement.
Until recently, workers employed by labour hire companies who were sent to work day-to-day under the control of another company (called a “controlling third party”) could only bring a personal grievance against their employer (the labour hire company) and not against the third party who was supervising their work at the time.
Taking a personal grievance if you work for a labour-hire company
Under the new “triangular employment” law, workers employed by labour hire companies who are treated unfairly by the company that supervises them day-to-day (the “controlling third party”) will now be able to take a personal grievance claim to the ERA, not only against the labour hire company but also against the controlling third party.
You must tell the controlling third party within 90 days after the action or incident that you believe they caused or contributed to the grievance. Your employer can also apply to have that third party joined to your personal grievance claim and the third party can also agree to be joined after the 90 day period. Mediation is available to all three sides involved.
If the ERA decides that the labour hire company and the controlling third party share responsibility for what happened, it can order that they both pay compensation and in proportions that reflect each one’s level of responsibility.