Just been sacked, unfairly 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 of unfair dismissal.

employment problem.jpgEmployee 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 unfair 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 (Unfair) dismissal 

- Eight Steps to submitting your Personal Grievance

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 within 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.  It is also recommend that you request a response within a reasonable time frame.

Writing your personal grievance letter:

Writing your personal grievance letter for unjustified or 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 the following 8 steps before you start writing your letter.  These steps should take you approximately 30 minutes so grab your pen and paper, make sure that you will not be interrupted for 1/2 an hour, and start Step 1 to sorting out your employment problem.

The first thing you need to do is to get clarity on the nature of your situation. To do this you will need to ask yourself a number of questions about the events that took place, the documents you have and the dates. It is critical to get as much detail as possible.

Before you make a start on the Steps below you might like to use the FREE Personal Grievance Questionnaire (go to the Eight Steps below) to help bring all your information together.  You will need to register on the Employment Relations website to get access to it but it only takes 60 seconds and you will be taken straight to the questionnaire.  If you submit the details when you are done an employment law expert will give you a free opinion on your wrongful dismissal and give you some advice on the next steps you need to take.

Go to the Eight Steps to writing your Personal Grievance letter now.


More Information on Personal Grievance claims:

Mediation

Once your employment relations consultant has submitted your personal grievance claim and you have received a response from the employer you will need to decide whether to pursue your claim to a Mediation hearing with the Employment Relations Service of 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 you decide to engage an employment consultant.

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 or unfair 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.