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An employee who has been dismissed can only challenge this by taking a personal grievance. Employees cannot pursue a claim for wrongful dismissal under common law, as was possible under previous legislation.

Choice of procedure

In some situations, employees who believe they have a personal grievance may also be able to complain under the Human Rights Act. This may happen, for example, when an employee believes they have been discriminated against, sexually harassed or racially harassed.

Employees must choose either to take a personal grievance through to the Authority or to take their claim under the Human Rights Act. They cannot use both procedures for the same complaint.

Raising a personal grievance with the employer

An employee must let the employer know about his or her personal grievance, and that they want something done about it, within 90 days of the action complained of, or the date they became aware of it, whichever is the later.

If the employer is not told about the personal grievance within 90 days, the employer need not consider it unless the Employment Relations Authority allows the employee to raise it after 90 days.

The Authority will only allow that if it accepts that the delay was caused by exceptional circumstances. Exceptional circumstances include situations where:
  • the employee was so affected or traumatised by the action complained of that he or she was unable to consider raising the grievance in time
  • the employee made reasonable arrangements with an agent to raise the personal grievance on the employee's behalf, but the employee's agent unreasonably failed to do so in time
  • the employee's employment agreement does not contain a plain language explanation of services available to help sort out employment relations problems
  • the employer has failed to respond to an employee's request to give the employee a written statement of the reasons for the dismissal (see below).

Employer's reasons for dismissal

An employee who has been dismissed may ask the employer for a written statement setting out the reasons for the dismissal. They must do this within 60 days after the dismissal or after the date they became aware of it, whichever is later.

The employer must give the statement to the employee within 14 days after being asked. This information may be important in later efforts to resolve the problem. Also, if the employer does not provide this statement, the employee will be able to raise a personal grievance after the 90-day period.

Three-year limitation period on personal grievances

Employees may not start a personal grievance action in the Employment Relations Authority or the Employment Court more than three years after they have raised it with the employer.

Disclaimer & Acknowledgement

The material featured on this page was sourced from the Department of Labour and is subject to Crown copyright protection.

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