The 13 Types of Personal Grievance

The recent legislative changes will shift the personal grievance risk profile for employers and employees. While unjustified dismissal claims have been the most common claim, we expect to see an increase in other types of grievances, particularly unjustified disadvantage claims.

Most employers are aware that a personal grievance is a formal complaint an employee (or former employee) can raise if they believe their employer has acted unfairly or unlawfully. Less commonly known are the myriad types of personal grievances.

The Different Types of Personal Grievance

There are 13 different grounds under which a personal grievance can be raised. Some of these may surprise you:

• Unjustified dismissal (including constructive dismissal).
• Unjustified disadvantage.
• Discrimination.
• Sexual harassment.
• Racial harassment.
• Adverse treatment (by the employer) if the employee is (or is suspected to be) affected by family violence.
• Duress due to an employee’s membership or non-membership of a union.
• The employer has failed to comply with the restructuring requirements (Part 6A) for a ‘vulnerable’ worker.
• An employee has been disadvantaged because their employment agreement does not comply with the legislative requirements relating to agreed hours, availability, entitlement to refuse hours (outside of agreed hours), being treated adversely for refusing additional hours, cancellation of shifts and secondary employment.
• The employer has engaged in adverse conduct for a prohibited health and safety reason or coerced or induced someone else to breach the Health and Safety at Work Act.
• The employer has engaged in adverse conduct for a remuneration disclosure reason.
• The employer has retaliated, or threatened to retaliate, against the employee in breach of the Protected Disclosures (Protection of Whistleblowers) Act 2022.

That is quite a list. This means that irrespective of the new legislation, which requires the Employment Relations Authority and Employment Court to consider an employee’s contribution when it comes to remedies, there are many other avenues an employee can take to raise a personal grievance. We expect there will be a greater use of these other grounds.

The typical process to resolve a personal grievance

An employee must first raise a grievance with the employer, either verbally or in writing, within 90 days of the event that has led to the grievance (except sexual harassment claims which have a 12-month timeframe). The employee does not need to use the words “personal grievance” for it to be valid. What matters is that the employer is made aware of the substance of the concern, so they have an opportunity to respond and try to resolve it.

If the grievance cannot be resolved directly between the parties, the next step is typically to attend mediation. There is no obligation for either party to reach a settlement at mediation. If the parties do not agree to attend mediation, the Employment Relations Authority will direct them to attend, so there is no value in refusing to attend mediation.

If mediation does not resolve the issue, the Employment Relations Authority will proceed with an investigation meeting. The Authority will establish the facts and make a determination based on the merits.

Remedies for a successful personal grievance may include reinstatement, compensation, or loss of earnings, taking into account any contributory conduct by the employee.

Handling employment issues well can significantly reduce legal risk and prevent issues from escalating unnecessarily. Getting advice early, preferably before issues arise, can help employers respond appropriately.

If you would like support with managing a grievance, or guidance on steps you can take to reduce the risk of grievances arising in the first place, we are happy to help.