Personal Grievances - Employment Advocate – David Flaws

By: Employment Advocate  06-Dec-2011

The Employment Relations Act provides for any employee to bring a Personal Grievance against their employer. Raising a Personal Grievance is the main way that an employee can get compensation for unfair treatment at work, or for being unfairly dismissed.

Who can bring a Personal Grievance?

Only employees can bring grievances. Workers who are contractors are not protected by the Employment Relations Act. The Practice Notes on this site give some information about how the Authority would decide whether a worker was an employee or a contractor.

What are the grounds for a Personal Grievance?

There are only two types of Personal Grievance

  • Unjustified Disadvantage
  • Unjustified Dismissal

Unjustified Disadvantage arises when an employer unreasonably or unfairly does something or fails to do something that results in the employee’s employment or conditions of employment being unjustifiably affected to their detriment. In practical terms, the employer does something bad or unfair, and the employee suffers as a result.
Commonly, personal grievances for Unjustified Disadvantage arise when an employee is bullied or harassed and the employer fails to take effective action to stop it; when an employer treats a worker unfairly, either by changing their conditions of service arbitrarily and without discussion, by acting in breach of the “good faith’ requirements of the Employment Relations Act, or by conducting an unfair disciplinary process which does not result in a dismissal.

Unjustified Dismissal arises when an employee’s employment is terminated involuntarily without proper justification. The most common cause is an unfair disciplinary process, but a sham redundancy, or a redundancy where an unfair process has been followed are also legally regarded as unjustified dismissals. When an employee is forced to resign by an unfair action that the employer took knowing that the employee would resign in consequence is also an unjustified dismissal. It is technically known as an unjustified dismissal by way of a constructive dismissal.
The legal principles underlying the grievance are the same for all types of unjustified dismissal.
Any situation in which an employee loses their employment (either by being dismissed, by being made redundant, or by being forced to resign) is regarded seriously, and every employer has a number of duties and obligations which they must fulfil in any situation which may lead to an involuntary loss of employment.

  • To act fairly and in good faith as soon as the situation arises.
  • To provide full information about the situation that has led to the possibility that an employee may lose their job.
  • To afford the employee opportunity to seek advice and support
  • To investigate the situation fully and fairly
  • To give the employee opportunity to have input into that investigation
  • To give the employee opportunity to comment on the results of the investigation before a decision is made about any action (like dismissal or redundancy) to be taken
  • To give the employee opportunity to comment on the action to be taken before the action is implemented

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Employment Advocate – David Flaws

Most employers have only a very sketchy knowledge of how to conduct a disciplinary investigation, and many of them fall foul of the minimum requirements of the Employment Relations Act in terms of conducting a fair process. While I represent and act for employers in dealing with employees by way of disciplinary procedures, dismissals, redundancies and grievances of various sorts, I very much prefer to be involved before things go wrong.