Personal grievance advice
The relationship between an employer and employee is the foundational block for a functioning workplace. Our law talks about this relationship in terms of duties of “good faith”, “mutual trust and confidence”, and “not doing anything that may deceive or mislead the other party.” Although an employment relationship is based on a contract, that contract is read subject to these higher duties.
Workplace relationships can be challenged where actions occur that undermine the trust and confidence of both parties. An employee who believes their employer has breached their contract can formalise their concerns by raising a personal grievance which then must be addressed.
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. Personal grievances can cover a wide range of circumstances such as discrimination and harassment. Section 103 of the Employment Relations Act 2000 defines types of personal grievances the Act applies to.
The two most common types of personal grievances are unjustified disadvantage and unjustified dismissal.
Unjustified disadvantage
Unjustified disadvantage means that an employee's work conditions have been disadvantaged or worsened by an employer without any reasonable justification. Many things could amount to an unjustified disadvantage such as a loss of entitlements (such as a gym membership or carpark), a demotion, or withdrawing work or not giving work to the employee. Common examples include an employer failing to provide an employee with a safe working environment by not dealing with workplace bullying or harassment. Under the Health and Safety at Work Act 2015, an employer has a duty to provide their employees with a safe working environment, which includes an environment free from bullying or harassment or inappropriate behaviour. If an employer knows about a problem and fails to provide that environment, the employee will likely succeed if they pursue a personal grievance for unjustified disadvantage.
Unjustified dismissal
Employers can only end the employment relationship for lawful reasons. A lawful reason is one that the employer can demonstrate is both fair and reasonable: that is, their actions must be both substantively justifiable and procedurally fair. The employer must meet both of those elements before a dismissal will be deemed lawful.
For a dismissal (or any other decision) to be reasonable, it must be based on the facts. It is not enough for an employer to speculate about what happened to cause their concern; they need to get the facts right (on the balance of probabilities). Examples help illustrate this point:
If acting on a performance concern, the employer must be able to demonstrate there is an actual performance issue.
If acting on allegations of serious misconduct, the employer must establish that serious misconduct has occurred.
If acting on a concern an employee is not medically capable of doing their job, the employer must establish the employee’s actual capacity for work.
There is no place for assumptions – the employer must deal in facts.
A decision that is fair is one that follows the principles of natural justice. The minimum requirements are set out in Section 103A(3) of the Act and are very straightforward:
Get the facts straight by undertaking a ‘sufficient investigation’ (i.e. one that is independent and free of bias).
Raise the specific concerns with the affected employee (don’t beat about the bush).
Give the employee a reasonable opportunity to respond, which means the process should not be rushed.
The employer must listen to the employee with an open mind so that they genuinely consider the employee’s response before taking action.
The procedural requirements of Section 103A(3) apply to both unjustified dismissal and unjustified disadvantage claims.
Constructive dismissal
A constructive dismissal occurs when an employer acts in such a way that an employee reasonably believes that the employer will no longer be bound by the employment agreement. Constructive dismissal occurs in a range of circumstances. Examples include when an employer tells an employee to resign or be dismissed, treats an employee so unfairly or unreasonably that the employee could not be reasonably expected to put up with it, or repudiates an essential term of the employment such as paying the employee what was promised.
It is important to remember that, to justify a claim of constructive dismissal, the employer’s actions must amount to a substantial breach of the employment agreement. An employer who engages an employee fairly on legitimate performance or conduct issues, for example, is normally acting within the terms of the agreement. An employee who resigns in such circumstances will generally not succeed with a claim of constructive dismissal.
How to raise a personal grievance
A personal grievance must be raised with the employer within 90 days of when the personal grievance arose or first came to the employee's attention. There are no magic words the employee must use: they just need to raise the employment relationship problem with their employer and make it clear they want the employer to address that problem. However, it helps if the employee puts it in writing and uses the words ‘personal grievance’ in their letter or email.
If an employer dismisses an employee, the employee can request written reasons for their dismissal. The request must be made within 60 days and the written answer given within 14 days of the request. An employer acting fairly and reasonably should have no difficulty providing this written explanation.
I can help with raising or responding to personal grievances. It is important that both are done right to avoid problems down the track. For more information or help dealing with an issue at work, please contact me on +64 21 901 735.
