Personal Grievances…What are the grounds for raising one?
About the Author:
Jaenine Badenhorst
Associate at Rainey Collins
Jaenine is an Associate who specialises in litigation and dispute resolution in a range of areas including employment and family law.
What is a personal grievance?
A personal grievance is a complaint made by an employee against an existing or former employer. A complaint can be the result of the following:
1. Unjustifiable dismissal
Whether a dismissal is justified is a question which must be decided on a case by case basis. The employer’s actions must be within what a fair and reasonable employer could have done in the particular circumstances.
Serious misconduct may result (after a proper process as set out below) in a dismissal on notice or without notice (instant dismissal). Less serious misconduct usually requires the employer to give a warning and an opportunity to change or improve performance (again after a proper process).
2. Fair process
An employer must also follow a fair process when making any decisions that may negatively impact on an employee. Fair process requires the employer to adequately investigate any allegations, communicate concerns to the employee, give the employee a reasonable opportunity to explain or comment, and to consider the employee’s explanation with an open mind before making a decision.
3. Unjustified disadvantage
An employer must not do anything that affects an employee’s employment or conditions of employment in a negative way. Generally the disadvantage must relate to something which the employee would otherwise have been entitled to under their employment agreement.
4. Discrimination
An employee may bring a personal grievance based on discrimination if the employer treats the employee differently because of any of the following: colour; race; ethnic or national origin; sex including pregnancy or child birth status; marital or family status; age disability; religious or ethical beliefs; political opinion; employment status; sexual orientation; involvement in union activities.
An employee may choose to bring a personal grievance under the Employment Relations Act or to complain to the Human Rights Commission (but not both).
It is important to note that there are some circumstances where different treatment of employees will be considered acceptable.
5. Sexual harassment
An employee may raise a personal grievance if the employer, or the representative of an employer, sexually harasses an employee. Sexual harassment means:
Asking for sex or some form of sexual activity in exchange for preferential treatment or to avoid worse treatment or dismissal; or
Unwelcome or offensive behaviour through words, or physical behaviour of a sexual nature which has a negative effect on employment, job performance or job satisfaction. It is irrelevant whether the person has communicated that the behaviour was unwelcome or offensive.
An employee may also bring a personal grievance against an employer if a co-worker, customer or client sexually harasses the employee and the employer does not investigate or take all possible steps to stop the harassment from happening again.
Sexual harassment in the workplace can result in a personal grievance under the Employment Relations Act or a complaint to the Human Rights Commission under the Human Rights Act (but not both).
6. Racial Harassment
An employee may have a personal grievance if racially harassed by the employer, or a representative of the employer. Racial harassment means:
written or spoken language, visual material or physical behaviour that directly or indirectly expresses hostility, contempt, or ridicule, based on race; colour; or ethnic or national origins; and
which is hurtful and offensive; and
because of the kind or language, material or behaviour that is, or because it is repeated has a negative effect on your employment, job performance, or job satisfaction; and
it is irrelevant whether the person communicated this to the harasser.
A personal grievance against the employer if a co-worker, customer or client racially harasses the employee, and the employer does not take necessary action to prevent it from happening again.
Racial harassment can result in a personal grievance under the Employment Relations Act or a complaint to the Human Rights Commission under the Human Rights Act (but not both).
7. Duress about union membership or activity
An employee may raise a personal grievance against the employer or representative of the employer if the employer:
threatens an employee’s continued employment; or
uses undue influence; or
makes offers of incentives; or
makes threats of disadvantage
to encourage an employee to join or leave a union, or to stop acting on behalf of other employees.
8. Other reasons for personal grievances
An employee may also raise a personal grievance if the employer:
has disadvantaged the employee by not recording agreed hours in writing; or
has breached rules around zero hour contracts; or has treated the employee unfairly after turning down work when the employee did not have a valid availability clause in their employment agreement; or
has disadvantaged the employee by breaching the rule around cancelling shifts; or
has disadvantaged an employee by unreasonably preventing him or her from also working for other employers; or
dismissed or otherwise disadvantaged an employee in retaliation for some action taken in relation to a health and safety issue.
Associate
Rainey Collins Lawyers
(04) 473 6850
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