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Being known as a company whose employees have lodged personal grievances against you is not a reputation any employer wants to acquire.
MyHR is seeing a number of personal grievance claims at the moment, as employees are increasingly savvy about their rights around how employers may and may not treat them.
So we sat down with some top HR and employment law experts to understand the personal grievance process, what can trigger them, and what actions and behaviour employers and managers should avoid.
Personal grievances explained by lawyers
Under the Employment Relations Act 2000, an employee is entitled to raise a personal grievance with the employer, within 90 days.
There are two types of personal grievances, says BuckettLaw’s Lucy Fisher: one known as a disadvantage personal grievance and the other an unjustified dismissal personal grievance.
Personal grievances can be raised for a variety of reasons. The key element, Fisher says, is that the employee must have been dismissed or suffered a disadvantage. For example, an employer might unfairly suspend an employee and the employee can raise a personal grievance as the employer has disadvantaged them by not allowing them to come to work.
Other examples where employers may find themselves defending a claim include:
- Restructures/redundancies.
- Investigation process.
- Disciplinary process.
- Performance processes, such as performance improvement process.
- Psychological harm.
- Non-promotion.
- Discrimination.
- Sexual harassment.
- Racial harassment.
- Adverse treatment on the grounds a person is affected by domestic violence.
An employee is entitled to raise a personal grievance against their employer (or ex-employer), but what employers have to be concerned about is whether it’s a valid personal grievance, says Fisher.
Even if the actions the employer took which led to the grievance were justified in their reasoning, an employee may still raise a personal grievance about the process. Process is important, as a major flaw in the process can render a justified outcome unjustified.
Do your homework
MyHR’s Chief Evangelist, Sylvie Thrush Marsh, says the most common personal grievances MyHR is seeing at the moment are unjustified dismissals, where an employer has fired someone without a substantive justification (i.e. a good reason to fire them), or the employer had substantive justification but didn’t follow a fair process (i.e. they had good reason but their process was flawed or insufficient).
“Both are important,” she says. “You can have CCTV footage of someone stealing cash from the till, or physically assaulting a customer, and no judge in the world is going to say you’re unreasonable for wanting to fire them - but this doesn’t remove the employee’s right to fair process.”
She’s also seeing a lot of unjustified disadvantage grievances, where the employer did something which disadvantaged the employee in their employment, and it was foreseeable that this disadvantage would have happened.
“This could include not giving an employee enough time to find a support person during a disciplinary or restructure process; not providing enough information to the employee at the start of a consultation process; or not really listening to and taking into account an employee’s side of the story when deciding whether to issue them with a written warning,” she adds.
Typically, a personal grievance is raised once the employee has left the company, says Thrush Marsh.
They’ve either had enough and decided to leave and are now raising their frustrations with the employer, or the employment was ended by the employer, for example at the end of a disciplinary, restructure or termination for medical incapacity, and they’re now challenging the dismissal.
Thrush Marsh recommends employers do their homework when running tricky or sensitive consultation processes with their staff, and adopt best HR practices so you don’t attract grievances in the first place
Write everything down
In the case of an unjustified disadvantage grievance, it may be that the employer relies on a verbal agreement, says Michael Kim, principal of MK Law.
“An employer might say to their employee: ‘Look, last night we agreed that your hours would be reduced to 35 hours and now you’re raising this as a problem?’ “
“You have to put everything in writing; it’s a common mistake,” says Kim.
It’s essential for employers to follow a fair process, including consulting with the employee and documenting the outcome in writing before making any changes to their employment, he adds.
Another example he gives, is where a staff member may want to work from home or to work during the Christmas break but the employer may forget to get everything in writing and it becomes an issue. Or a staff member might have a 12-month work anniversary where their four weeks’ annual leave goes up by an extra week. The staff member will remember this and think they’re entitled to more holiday but if there’s no written confirmation of this, it can become a personal grievance.
Re-advertising roles you previously made redundant
Employers should tread carefully when re-advertising roles that were previously made redundant. This is not uncommon, says Kim.
In some cases, these may have been sham redundancies where the employer didn’t like the employee and decided to make the role redundant to get rid of them, and then the employee who was laid off sees their role advertised again.
“If this is the case, the employer will often be on the losing side of an unjustified dismissal claim because they’re seen as acting in bad faith,” says Kim. The decision from the ERA is often punitive.
The redundancy process in particular is quite delicate, he warns.
The employer needs to act in good faith throughout the process - this includes clear communication and providing all relevant information to affected employees.
Employers should always document the genuine business reasons behind a redundancy to avoid potential claims, Kim adds. And if a role needs to be re-advertised soon after redundancy, offering it to the previously redundant employee first could mitigate the risk of a personal grievance.
If you're hiring again within three months for the same roles that you just made redundant, it's good practice to reach out to your ex-employees and see if they want their jobs back, agrees Thrush Marsh.
This is because the time limit for raising a personal grievance is 90 calendar days (the one exception is 12 months for sexual harassment), so if your employees get wind that you're "replacing them" within that time, you might run into trouble.
A lot of small employers use restructuring to “exit” employees who don’t meet their expectations but that’s not a good reason, says Sharon Searle from SmS Consulting.
“If employees aren’t meeting expectations, then a performance management process should be followed,” she advises. Good faith requires employers to discuss poor performance with their employees and give them an opportunity to make changes or improve, with support to do so.
Some employers try to change people’s duties when they’re not performing and this is the wrong thing to do, explains the management consultant. Employees have the right to receive feedback on how they’re performing and to be given an opportunity to change their performance to meet the employer’s expectations.
Unilaterally changing a job description to deal with poor performance could result in a personal grievance, warns Searle.
Are you avoiding difficult conversations? They’re worth it.
Personal grievances can happen because the employer just hasn’t taken the time to talk to people or isn’t comfortable having the hard conversations, says Searle. She provides specialised management services to employers and is sometimes called on to make employees redundant for them.
“It’s uncomfortable for the employer and it’s why they bring me in to have those conversations.
“I’ve been in a lot of situations where the employee is unhappy and actually wants to move on. If you have a lot of conversations with your people and you’re honest, you can often find solutions without incurring a personal grievance from the staff member,” she says.
“If you’re not giving them the opportunity to problem-solve with you, then you’re contributing to the breakdown of the relationship.”
When people feel forced out of a job or at a disadvantage, and there’s been a relationship breakdown, they’ll often feel that they have no other option but to resign and take a personal grievance against the employer, Searle explains. The employer might think they’ve resigned and that’s the problem solved, but that’s not necessarily the case.
And if they haven’t got another job to go to, it will make them all the more aggrieved, she adds.
Is it a case of one bad apple?
It can be a single manager within an organisation who’s causing the problem leading to a personal grievance, says Kate Ross, recruitment expert and CEO for Woman Start-Ups.
They might show a lack of empathy, an unwillingness to listen, rudeness, or set unrealistic expectations and then lose their cool when the work isn’t delivered.
“Typically it’s the same action each time; they repeat the offence and never learn,” she says.
On the other hand, the organisation’s embedded practices and culture may give bad apples permission to behave badly, says Thrush Marsh. Or managers who want to do the right thing may feel pressured to cut corners or neglect putting the time and effort into navigating these challenges in a respectful and legally sensible way.
Either way, your reputation erodes and slowly you will lose who you have and you’ll have a ‘churn and burn’ type of turnover that will be very costly.
Managing the communication around personal grievance
The consequences of getting all this wrong and incurring personal grievances are damaging in small town New Zealand, where aggrieved former employees will spread the word.
Effective communication is essential in any HR process to avoid mixed messages and confusion, says Rebecca Reid, director of communications agency NSPR.
Invest in training for difficult situations, she recommends.
“Developing skills in fair decision-making, effective communication, and conflict resolution can provide tools to cope with redundancies, performance issues, and personal grievances, ultimately leading to the best possible outcome for both employees and senior leaders,” she says.
When dealing with any HR and crisis situation, remember that correspondence, especially written material, may be shared beyond intended audiences, warns Reid.
Personal grievances don’t always allow for full transparency and a business’s perspective may not always be fully communicated publicly.
“Emotions often run high and if confidentiality is breached by the other party, we recommend that the businesses should consistently communicate (and behave in line with) their core values across all platforms,” she says.
Meanwhile if the business is planning to rehire within six months of layoffs, a company should have a strategic approach clearly outlining why the position is being offered following redundancies, recommends Reid.
“Ensure that all communications including job advertisements are reviewed by a communications professional and that you seek legal advice,” she adds.
