Even with the mandating of the COVID vaccination for many organisations, employers still need to follow a process before deciding to terminate employment. An employer’s good faith obligations remain.
Way back, seemingly a lifetime ago, the government introduced the Employment Relations (Triangular Employment) Amendment Bill. On 27 June this Bill comes into law, and will impact organisations who use temps, secondees or third parties to engage labour.
The effect of the law change means an employee in a triangular employment relationship can apply to raise a personal grievance against not only their employer (usually the temp agency), but also the organisation engaging the worker (the controlling third party).
The employer can also seek to have the controlling third party joined to a personal grievance raised against them. Finally, even if neither the employee or employer make an application for this, the Employment Relations Authority can, of its own motion, join the controlling third party to a personal grievance proceedings.
While ordinarily a personal grievance against a party must be raised within 90 days of the action that caused the grievance (or the employee became aware of it), this timeframe does not apply for the controlling third party. The employee must still raise the personal grievance within 90 days with the employer, however the employer then has a further 90 days from receiving the personal grievance to seek to join the third party, and the Employment Relations Authority has no time limit to join them.
Potentially, with the significant delay we are currently experiencing in the Employment Relations Authority, it could be months or even years, before a controlling third party is even aware they are party to a personal grievance.
If an organisation is joined to a personal grievance they can be ordered to attend mediation, and ultimately the Authority can order them to pay compensation for lost earnings and hurt and humiliation. Although the Authority cannot order reinstatement to the controlling third party, it is not beyond the realms of possibility with recent cases, that the Authority could determine the ‘real nature of the relationship’ is a that of an employee and employer, and if this was concluded, reinstatement would be possible.
We suggest you consider your contractual arrangements with the temp and secondment agencies you work with, and manage any issues with their workers with the usual good faith obligations in mind.