Personal Grievance Claims

Personal grievances or PG’s – everyone knows these are words and letters that employers fear. 

First up – its important to know that if you have followed a good employment process, you should take comfort from this, but it may not stop an employee laying a grievance claim.

So, what is a personal grievance? A personal grievance is a claim from an employee (generally referred to as a PG) which can, initially at least, arrive in a variety of forms. For instance:

• It may involve the employee meeting with you and telling you that they have a claim/personal grievance against you;

• Alternatively, the employee might outline their position in a letter or email, or a similar letter might arrive from an employee’s union representative or their advocate or lawyer.

• Finally, the claim might come in the form of formal documentation that has been filed in the Employment Relations Authority known as a Statement of Problem.

In some cases a PG is received following an incident that has been treated as misconduct or serious misconduct, but sometimes they are received unexpectedly.

In general, a claim must be lodged within 90 days of when the grievance occurred or came to the employee's attention, although there are some instances that a claim may be lodged after 90 days.

When you receive a PG, it is important that you take it seriously and follow the correct process. Receive the claim calmly and don’t rush into a response, verbal or written. You should seek advice from our HealthyPractice team or your HR or legal advisers.

If you have employment disputes cover as part of your business insurance you should contact your insurer before you take any action. If you are undertaking a disciplinary process, restructure redundancy or performance management process there is usually a notification process requirement before you start the process.

There will be a number of steps that you should take, or should at least consider taking, in the meantime. For instance, at your end you should:

• Ascertain as best you can what has occurred or what you need to know to understand the employee’s claim and why they are bringing it. In many cases, particularly in a small workplace, this will be readily apparent. It is important that any necessary enquiries be discreet and low key and do not, for instance, make matters worse.

• Gather documents such as letters and emails that are relevant to the employee’s claim, for instance documents which may help to prove or disprove what the employee is saying, or which are merely part of the chain of communications that have led to the claim being made.

• As well as taking care of what you say to others in your conversations, also take care with what you say in any documents you create, such as letters and emails. Even what you might say after the claim has been raised could affect the outcome of the case subsequently, for instance by confirming your attitude towards the employee. This caution applies equally, if not more so, to what you do prior to any formal dispute. For instance, where behavioural or poor performances issues are developing it is not uncommon for an employer to communicate amongst its managers or with others about the issues, how it feels about the employee and their conduct, and what it intends to do. Emails of this nature can often be very unhelpful to an employer if they come to light after the event.

• Ascertain how you should or, indeed can continue to operate your business in the meantime. In most instances the fact that a claim has been made will not make any difference to the day to day running of your business, and other than a brief chat with your employee advising that you will respond in due course and that it is important for everyone to carry on in the meantime, no other steps might be necessary.

• Where serious allegations have been made, for instance allegations of sexual harassment or bullying, more significant and immediate steps might be necessary. It might be necessary to suggest to your employee to take leave or to separate employees in some way. Where such circumstances exist it is important that you don’t make matters worse by your inaction or overreacting. This could make matters worse or indeed create another claim by another affected party (e.g. the employee who is the alleged bully or sexual harasser). These situations can be difficult and complicated and your response needs to be carefully measured. In these more serious situations it is imperative that you take external advice.

In most situations, and after you have taken time to consider your position, the most obvious first step, and the most usual course, is for the parties to meet and to discuss what has occurred. Where a grievance has been raised it is usual, but not always necessary, that any meeting be attended by others, for instance the employee’s representative. You should probably have another person with you at any meeting with an employee. It ensures that you are protected from allegations made subsequently that you mishandled the meeting or said or did something you didn’t.

Likely pathways

If the grievance has been raised by a lawyer, on behalf of the employee, then we would suggest that you engage a lawyer.  This will ensure that responses to communications are timely, and a good employment lawyer will know exactly how to respond to them at each step of the way.

Mediation can be one of the pathways to resolution, this involves an independent mediator, appointed by the Employment Relations Authority (ERA) and they will set a date.

Outcomes

An agreed settlement is a common outcome, this is detailed in a Record of Settlement which is lodged with the ERA. The Record of Settlement records the terms of settlement including any financial compensation to be paid for loss of income and sometimes hurt and humiliation.

Sometimes an employee will request reinstatement, and this will be the first course of action by the ERA for employees who have been found to be unfairly dismissed.

Conclusion

This process is difficult, time consuming and potentially expensive. But fear of the process shouldn’t stop you from dealing with difficult employees or situations in the workplace that are causing upset to other employees.

Before you start any disciplinary process – know what you can and can’t do Disciplinary process (healthypractice.co.nz), seek advice from our HealthyPractice team, document everything and follow process.