What happens if an employee raises a personal grievance?

A significant component included in New Zealand employment law includes an employee’s right to raise what is known as a ‘personal grievance’. Essentially, a personal grievance is a formal legal proceeding that an employee can bring against their employer.

This article explains this proceeding further and the approaches an employer can take should they face such a claim. If an employee believes that they have been mistreated by their employer (whether unfairly or illegally), they can potentially raise a personal grievance. This right is provided to employees under section 103 of the Employment Relations Act 2000.

The most common occurrences that initiate an employee to raise a personal grievance include instances where an employee believes they have been unfairly dismissed and/or mistreated by their employer.

Other occurrences that can potentially lead to a personal grievance being raised include (but are not limited to):

• A constructive dismissal – instances where an employee felt that they had no choice but to resign from their employment due to an employer’s actions or failure to comply with reasonable demands from the employee/ address concerns they may have raised.

• Discrimination – where an employee believes that they were subject to discrimination by their employer. This could include treating an employee unfairly because of their gender, sexual orientation, religious beliefs and/or ethnicity etc

• Health and safety concerns – where an employee believes their work environment is in breach of health and safety requirements that an employer is obliged to provide to its employees.

An employee has the right to raise a personal grievance with their employer provided that the claim is made before 90 days have passed since the alleged actions/inactions occurred. Once raised, an employer is encouraged to discuss the grievance informally with the employee with the intention to resolve the matter. Resolving the problem immediately in the first instance can minimise financial expenditure on the employer’s behalf. Additionally, the sooner the problem can be resolved, the sooner the employer can focus on business operations with (or without) the employee, depending on the matter.

Understand that in employment law, when a personal grievance is raised by an employee it is normal for them to not only claim to be compensated for any loss they may have sustained (e.g. lost wages) but additionally, they will most likely seek further compensation for hurt and humiliation (under section 123(1) (c) (i) of the Employment Relations Act). The amount sought in such a claim varies on a case-by-case basis.

This is a common remedy sought by employees during the negotiation process. The above is a summary of what to expect as an employer if an employee raises a personal grievance against you. Of course, the best defence to personal grievance matters as an employer is avoiding them altogether! The following points should be considered as an employer when handling employment matters with your staff in order to minimise the chance of your employees raising a personal grievance:

The rules surrounding employment law and your duties as an employer are not limited to provisions in the Employment Relations Act. Other notable legislation includes the Holidays Act 2003 and the Health and Safety at Work Act 2015. Staying within the paradigms of your requirements as an employer is key to avoiding personal grievance claims.

• A large number of personal grievance claims stem back to a breach of employment agreement clauses. This could include factors such as not providing the minimum hours stipulated in the agreement, not compensating the employee for overtime, requesting the employee to perform duties beyond their job description etc. Employers need to take a diligent approach to ensuring that they are managing their employees in a fair and reasonable manner and meeting employment agreement requirements in both a contractual and statutory manner.

• Communication is key! If an employee raises concerns with you about the workplace or perhaps even their personal life, your role as an employer is to act in good faith and provide the necessary support when required.

Other points to consider:

• An employee does not have unlimited time to raise a personal grievance against their employer. The Employment Relations Act requires all employees to raise a personal grievance with their employer within a period of 90 days. This 90-day period begins on the date on which the alleged action that caused the grievance occurred.

• A common misconception held by employers is that an employee cannot raise a personal grievance against their employer if they are subject to a trial period during their employment. This is only partly true. If an employee is under a valid trial period during their employment tenure, then they cannot raise a personal grievance for unjustified dismissal against their employer. However, the employee may still bring a personal grievance for other issues (e.g. matters relating to an unjustified disadvantage).

• There are other useful sources you can utilise if you cannot negotiate or settle a personal grievance with your employee. The Ministry of Business, Innovation and Employment (MBIE) provides a free mediation service. This is a voluntary/optional service that involves negotiating your employment matter with an MBIE mediator in attendance. A mediator acts as a neutral party and can provide recommendations to both parties (they are not able to force either party to do anything).

• If an employer and an employee cannot settle the matter between themselves and have exhausted all other options, the next step involves an application being made to the Employment Relations Authority (ERA). An ERA hearing involves both parties presenting their case to an ERA member who, unlike MBIE mediators, can make legal orders/directions for parties to follow. Unlike MBIE mediation, an ERA hearing is not a free service and can result in expensesdepending on the outcome of the hearing.

Just remember, we are here to help!Should an employee raise a personal grievance with you, do not hesitate to call the Restaurant Association Helpline team on 0800 737 827 for further advice.or signup at restaurantnz.co.nz.

JORDAN GREY Restaurant Assoication Helpline Advisor

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Grape To Glass

Duncan Shouler GIESEN

When many people who try their first sip of wine tend to scrunch their noses, Duncan Shouler was immediately intrigued by the winemaking process.

These first memories influenced Shouler to find an interest in the process and pursue a winemaking career, which began with studying for a Master’s in Wine Science.

Shoulder began to travel around, tasting as much wine as he possibly could.

“I have many fond memories of that period in my life, and I think that’s what really turned the spark into a full-on fire,” Shouler said enthusiastically.

This fire has led Shouler to work alongside a collection of talented winemakers and viticulturists, assisting him on his journey to get where he is today.

Working at Giesen encourages Shouler to push boundaries and embrace innovation while respecting traditional wine art.

This results in having one side of the winery operating out of technology and remodelling while the other continues with years of tradition.

These approaches allow the Giesen team to remain consumer-focused and provide alternative spaces of connection between the producers and those that indulge.

Some products include a range of zeroalcohol wines, gin, and classics like a Marlborough Sauvignon Blanc fermented in stainless steel.

The philosophy Shouler holds is to prioritise efficiency throughout the winemaking process, freeing up time to focus on alternative matters, such as the Clayvin Chardonnay.

Giesen’s competitive edge is its zero-alcohol range of wines, which is seen to challenge people’s perceptions of what winemaking and drinking are.

Having already been a massive success for the company, Shouler believes this will be a key differentiating factor moving forward, particularly with more consumers monitoring their alcohol intake but not shying away from a good day out.

Alongside the alcohol-free range is the Clayvin range. The Clayvin Range is a wellliked variety of wines they have because of its unique characteristics. Varieties from Clayvin include a Chardonnay, Pinot Noir and a Syrah and carry floral characteristics.

Another innovative strategy that Shouler and the team at Giesen have introduced is the spinning cone column. This established Giesen as the only New Zealand winery with this technology, allowing them to produce the zero alcohol range.

Furthermore, in 2022, the team brought in decanter technology. Decanters can replace presses and have twice the capacity to clarify juice for fermentation, further improving operational efficiency while maintaining clean and delicious Marlborough Sauvignon Blanc. When considering the various impacting factors of winemaking, Shouler believes that the quality of the fruit is at the forefront. Tasting and ensuring the fruit is picked at the right balance is necessary to ensure consistent, enjoyable flavour palates.

Even though the industry is moving fast, Shouler and the team at Giesen intend to continue innovating and developing their products and systems.

“The future will certainly be a combination of innovation and tradition. I think we will see the low and no alcohol category gain importance and see the rise of innovative wine styles that connect with younger consumers. Of course, at the same time, classic traditional style that expresses a great sense of place and provenance will always be important.”