Just been sacked, wrongfully dismissed, unjustifiably dismissed or "let go"? 

 

It does not matter what you call it,  if your employer has not followed the correct procedure or did not have a genuine reason for your dismissal, under employment law, you may have a personal grievance claim.

Employee dismissals occurred every day in New Zealand.  According to the Department of Labour statistics there was 107 cases in the Employment Relations Authority in 2008.  A high percentage of those cases were personal grievance claims for unjustified dismissal that were not resolved at Mediation.  When you consider that over 60% of personal grievances are resolved at mediation you can see that, if you have just been dismissed unfairly, you are not alone.

The Employment Relations Act 2000 gives all employees the right to pursue a personal grievance if they have any of the following complaints:

• Unjustied dismissal
• Unjustified action/disadvantage
• Discrimination
• Sexual harassment
• Racial harassment
• Duress over membership of employee organisation. 

Unjustifiable (Wrongful) dismissal

To bring a personal grievance for unjustified or unfair dismissal against your employer you must start by raising the grievance with your employer.  There is a time limit of 90 days to do this.  It is important that you take action quickly.  If you do not submit your personal grievance withn 90 days the employer does not have to consider the grievance and you cannot take your grievance to the Employment Relations Authority unless there are exceptional circumstances.

To raise a personal grievance for unfair dismissal with your employer you do not necessarily have to make a written complaint.  You are only required to make the employer aware, or take reasonable steps to make them aware, that you allege a personal grievance on the basis of unjustified dismissal.

However, it is advisable that you raise the personal grievance in writing, stating the nature of the grievance, the relevant facts and the remedies you seek to resolve the matter.  We also recommend that you request a response within a reasonable timeframe.

Writing your personal grievance letter:

Writing your personal grievance letter for unjustified/unfair dismissal is the most important step of your claim.  This document creates the foundation of your personal grievance claim and will be relied on throughout the ensuing process.

Because it is so important we recommend you take a number of steps before you start writing your letter.  The following steps should take you approximately 30 minutes.  We recommend that you grab a pen and paper and make sure that you will not be interrupted and can fully focus on your problem.

The starting point is to get clarity on the nature of your situation. To do this you will need to ask yourself a number of questions about events that took place. It is critical to get as much detail as possible.

STEP 1 - What happened before your dismissal?

For the next 10 minutes write down what ever comes to your mind when you think about what happened to you. Don’t worry about getting any order to it … just write. Here are a few questions to get you going ….

• When did it all start?
• What happened?
• Why was it unfair or unjustified?
• How did you react?
• Who was involved?
• What were you accused of?
• How did it end?
• How did you feel at various times?

Sometimes this can be a little upsetting. That is to be expected. I don’t know anyone who has ever enjoyed an employment problem let alone enjoyed having to think it all through again. Unfortunately, there is no easy way. Take comfort in the fact that you are doing something about it … You are taking action!

STEP 2 - Important Meetings and Dates  before your dismissal

Next. Write a list of events. Include the date, time, venue, who was there and one (short) sentence on what the event was.

STEP 3 - The Documents relating to your dismissal

Write a list of documents you have. Include in your list your employment agreement, any warnings, diary notes, letters, payslips etc.

Note: If you have been dismissed you should request the reasons for your dismissal in writing from your employer. 

STEP 4 - The Employer’s details

Write down the name and contact details of your employer. If you are not sure of the legal name of the company you can search by company name or director through the companies office at www.companies.govt.nz. You will find the registered address for service here as well.

STEP 5 - Check for Gaps in your information

Now … go back to your first page and read through what you wrote from Step 1 to 4. Is there anything missing? Does anything else come to mind that might be important? Write it down.

 

STEP 6 - Remedies for Personal Grievances

The final step in this section is to think about the remedies you want. What will resolve your personal grievance for you?

An employee with a personal grievance claim for unjustified dismissal may ask the employer for any remedy the employee thinks appropriate. The remedies available to you will depend on the circumstances of your case. An experienced employment representative will be able to give you a better idea. Determining the possible remedies that could be available to you is more of an art than a science. The more case law you read the better your ability to be able to predict.

The main categories of remedies available at the Employment Relations Authority are listed below:

Remedies for personal grievance:

Reinstatement

The Employment Relations Authority may order that an employee be put back in his or her previous position or a similar one that is not worse for the employee.

If the personal grievance is found to be valid and the employee asks for reinstatement, the Employment Relations Authority must order it if it is practicable. The employer must carry out the Authority's decision, even if the decision is under appeal, unless the Authority or the Employment Court orders otherwise.

Interim reinstatement

The Authority can order the employee to be reinstated until the personal grievance is heard, if the employee asks for this. The Authority may impose conditions when ordering reinstatement.

Reimbursement

 

If an employee has lost wages or other money as a result of the grievance, the Employment Relations Authority can order the employer to pay all or part of the lost amount. Unless the Authority thinks that the employee was partly to blame, it must order the employer to pay at least all lost money up to three months' ordinary time wages, and may award more.

Compensation

The Authority may order the employer to pay money to the employee for:

• any effects on the employee personally, such as humiliation, loss of dignity or injury to his or her feelings
• the loss of any benefit which the employee might reasonably have expected if the grievance had not arisen.

Recommendations in cases of sexual or racial harassment

 

When an employee has been sexually or racially harassed, the Employment Relations Authority may make recommendations to the employer on what to do about the harasser. This may include transfer, disciplinary action, or helping to change his or her behaviour to prevent them harassing again. The Authority can also recommend any other action to prevent further harassment of the employee or any other employee; for example, that the employer develop and implement an educational programme in the workplace or adopt a formal harassment policy.

Contributory fault

 

The Authority must reduce the remedies if the employee is found to be partly at fault in a grievance case.

We recommend you consider what you would be prepared to accept to have the matter at an end and what would allow you to put the problem behind you and then get some advice from a professional employment representative.

STEP 7 - Use our Personal Grievance Questionnaire

We have worked in employment law for over 10 years.   Over that time we have fine tuned the questions an employment representative or consultant needs to ask you to work out whether you have a personal grievance claim. 

If you have followed the above steps you will have already saved a considerable amount of time already which means you have probably just saved a couple of hundred dollars in representation costs!

Use our Personal Grievance Questionnaire and you will save a couple of hundred dollars more! 

Once you have completed the questionnaire we will provide you with a low cost, no obligation, preliminary opinion and some advice on whether you have a claim and what you need to do next if you do.

Easy!

 

STEP 8 - Get advice from an Employment Representative or Employment Consultant

Over 80% of employees who pursued a personal grievance for unjustified or unfair dismissal to mediation have some form of representation with them.  We believe the reason for this is because it is very difficult to be objective, impartial and clear about your claim when you are trying to represent your self.  It is also of considerable advantage to have someone who is familiar with employment law and the processes of mediation on your side.

SUMMARY OF THE STEPS

There you have it! 

The Eight Steps to preparing your Personal Grievance claim for Unjustified Dismissal.  If you have taken the time to follow these steps you will have saved yourself hundreds of dollars in legal fees already.

Here is a quick summary:

STEP 1   Write down what happened before your dismissal

STEP 2   List the important meetings and dates

STEP 3   List the documents you have that relate to your employment and your dismissal

STEP 4  Write down your Employer’s details

STEP 5  Check for Gaps in your information

STEP 6  Get clear on the remedies for Personal Grievance claims

STEP 7  Use our Personal Grievance Questionnaire

STEP 8  Get advice from an Employment Representative or Consultant

Mediation

Once you have submitted your personal grievance claim and received a response from the employer you will need to decide whether to pursue your claim to a Mediation hearing with the Department of Labour.

Mediation is a technique that allows the parties to resolve their differences with the help of an employment Mediator.  A Mediator may talk to both parties together or separately.  The Mediator will listen to both sides of the story, clarify the needs of each party, encourage the parties to discuss together how they each see the situation, and help the parties to reach a solution that is acceptable to them both.  For unjustified dismissal claims the process will usually occur in the Mediation Service rooms.

If the parties reached agreement they can ask a Mediator to sign the agreement.  The Mediator will explain it to the parties that, once signed, the agreement becomes final and binding and cannot be challenged.  Such an agreement is enforceable in the Employment Relations Authority or the Employment Court, and there are penalties for breaching it.

If the employer and employee cannot reach agreement in mediation, they can agree (by giving written authority) to the Mediator to make a final and binding decision.  The Mediator will explain to the parties that once he or she makes a decision on that decision is enforceable and cannot be challenged.  There are penalties for breaching such decisions.

Understand the steps for getting to Mediation takes a little bit of time but it will be worth checking them out before trying to find a representative.

If either or both of the parties do not want the Mediator to make a decision, the problem may be taken to the Employment Relations Authority, which will investigate and make a determination for the parties.

Unjustifiable action resulting in disadvantage

Employees may have a personal grievance if an employer does anything unjustifiable which disadvantages an employee in the job or work conditions.

Discrimination

An employee will have a personal grievance based on discrimination if an employer or an employer's representative discriminates because of the employees:

• colour
• race
• ethnic or national origins
• sex (including pregnancy or childbirth status)
• marital or family status
• age
• disability
• religious or ethical belief
• political opinion
• employment status
• sexual orientation
• involvement in union activities, which includes claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.

These grounds (apart from the last) are the same as the grounds in the Human Rights Act. In some circumstances, different treatment of employees on these grounds is acceptable. These circumstances are set out in the Human Rights Act.

Discrimination for the above reasons can involve:

• refusal or failure to offer an employee the same terms of employment, conditions of work, fringe benefits, opportunities for training, promotion or transfer as other employees with the same or similar qualifications, experience or skills working in the same or similar circumstances.
• dismissal or detriment by the employer or employer's representative in circumstances in which other employees doing the same kind of work are not, or would not be, treated in such a way.
• retirement or being made to retire or resign by the employer.

Sexual harassment by a person in authority

An employee may have a grievance of sexual harassment against his or her employer if his or her employer or supervisor or a person with authority in the workplace:

• directly or indirectly asks the employee for sex or some form of sexual activity, either promising preferential treatment in the job or threatening worse treatment or dismissal, or
• directly or indirectly subjects the employee to unwelcome or offensive behaviour through words, visual material or physical behaviour of a sexual nature, and this behaviour is of such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

A personal grievance can be taken even if the promises or threats were suggested rather than stated openly. Similarly, the employee does not have to say that certain behaviour is unwelcome or offensive when it happens in order to be able to pursue a grievance.

Racial harassment by a person in authority

An employee may have a grievance of racial harassment against his or her employer if the employer or supervisor or a person with authority in the workplace:

• directly or indirectly shows hostility, ridicule or contempt based on the employee's race, colour or ethnic or national origins through language, visual material or physical behaviour that the employee finds hurtful or offensive; and
• this behaviour is of a such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

The employee does not have to say that the behaviour is hurtful or offensive when it happens in order to be able to pursue a grievance.

Sexual or racial harassment by co-workers or customers

An employee who is sexually or racially harassed in any of the above ways by any co-worker, or by a customer or client, may complain to the employer.

The employer must then look into the facts. If reasonably satisfied that the complaint is genuine, the employer must take whatever steps he or she can to stop the harassment happening again. This may, for example, involve restricting the access of the customer or client to certain parts of the workplace.

If the harassment happens again after the employee complains and the employer still has not taken all practicable steps to prevent the harassment, the employee will have a grievance against the employer.

Duress over membership of unions or employee organisations

In some situations, employees could be subjected to duress by their employer because of their membership or non-membership of a union or an employees' organisation.

Duress can occur when an employer or an employer's representative

• says that an employee must belong (or must not belong) to a union or an employees' organisation (e.g. a staff association) if they wish to keep their job, or
• uses undue influence, offers or does not offer some incentive or advantage, or threatens to disadvantage the employee, in order to get an employee to leave or join a union or an employees' organisation or a proposed one, or
• uses undue influence, offers some incentive or advantage or threatens to disadvantage an employee to try and stop the employee from acting on behalf of other employees.

Personal Grievance Claims

Pursuing a personal grievance for an unjustified dismissal, unjustified action/disadvantage, discrimination, sexual harassment, racial harassment, or for duress over membership of an employee organisation is  often associated with a difficult and challenging time.  It is hard for some one who has just been sacked to think clearly.  Getting a highly experienced employment representative or employment lawyer who understands employment law to help you with your claim will always pay off in the end.

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