When push comes to shove in work relationships
Like all relationships, employment relationships don’t always run smoothly. Sometimes a quiet word between the employee and the employer will be sufficient to sort out any problems. But what do you do if you are the employee and this approach has not worked? The Employment Relations Act 2000 establishes some rules around how to deal with employment problems.
Employment problems can be raised as a dispute or a personal grievance. The first question, when raising a dispute or grievance, is whether the issue can be considered under the Act. The employment agreement must be between an employer and an employee, that is to say the employee must be employed on a contract of service.
The next issue is whether the problem is actually an employment relationship problem. The term “employment relationship problem” includes a grievance, a dispute (meaning a dispute about the interpretation, application, or operation of an employment agreement), or any other problem relating to or arising out of an employment relationship. Some examples of problems include matters relating to breaches of employment agreements and questions about compliance with good faith obligations. Good faith obligations are about parties to employment agreements dealing with each other in trust and confidence and being active and constructive in their dealings with each other.
A personal grievance can mean unjustifiable dismissal or disadvantage to the employee’s employment or conditions of employment by some unjustifiable action of the employer. For an employer’s actions to be considered justifiable, the actions would have to be what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.
Discrimination against, or sexual or racial harassment of an employee are also grounds for a grievance and can be pursued, alternatively, through the Human Rights Commission. An employee has 90 days from the date of a grievance to raise this with the employer.
Grievances in relation to dismissal are most common. The only way to challenge a dismissal or any aspect of it is by raising a personal grievance. If an employee is dismissed during a 90 day trial period, the employee is not entitled to raise a grievance in relation to the employee’s dismissal.
If raising the dispute with the employer is unsuccessful the next step is mediation. Where mediation does not work, the employee may apply to the Employment Relations Authority, to have the dispute heard by the Authority. Decisions of the Authority may be appealed to the Employment Court.
When assessing the employer’s actions, the Authority or the Employment Court (if the Authority’s decision is appealed), must consider whether the employer sufficiently investigated allegations against an employee before taking action, whether the employer raised concerns they had with the employee before taking the action the employer did, whether the employer gave the employee any opportunity to respond to the employers concerns before taking action and whether the employer genuinely considered the employee’s explanation before taking the action in question.
The Authority or the Employment Court may consider other factors they think important, such as the actions of the employee in relation to the grievance in question.
If a grievance is upheld a remedy may be available. Available remedies are those set out in Employment Relations Act 2000. Any actions by the employee that may have contributed to the grievance or dispute may impact on available remedies.
If this article raises questions for you as an employee, you are welcome to call Community Law Marlborough on (03) 577 9919 or 0800 266 529 for further assistance.