One would think that raising a personal grievance is a straightforward matter. Tell your employer that you are not happy with whatever he has done to you and you are in business and can go to the Authority or Court. Right? Wrong.
It is not that simple and a recent decision by the Employment Relations Authority, later overturned by the Employment Court, highlights the difficulties quite nicely. In Waitai v Chief Executive of the Department of Corrections, the Authority decided that the claimant raised his grievance in time and with sufficient detail. In a notably well researched decision, the Authority held that the claimant’s grievance was raised when his (union) representatives referred to his dismissal and arranged for mediation. The parties agreed to go to mediation and both sides believed at that time that a grievance had been raised.
Not so, according to the Employment Court. Considering extensive case law the Court held that the grievance was not raised with sufficient detail. In support Melville v Air NZ Limited was referred to, a case where the employee despite protesting against certain allegations and saying ‘see you in court’ at the time of dismissal, was held to not having raised a personal grievance. In another case, Dickson v Unilever NZ Ltd, the employee told the employer to treat his letter as a personal grievance based on unjustified dismissal and that details would follow. Again, not sufficient, as the Court noted there was ‘no identification of the problem and no proposals made to resolve the problem’. (No identification of the problem? What more can you possibly do to identify ‘the problem’ ?)
Although an employer can anticipate the rasing of a grievance, this does not amount to the raising of the grievance itself. And neither does the arrangement of a mediation date.
The Court, in summary, concluded that it was not enough that both parties believed the grievance had been raised. Notably, it was not enough that everyone knew that the employee considered his dismissal to be unjustified for procedural or substantive reasons. Clearly the employer also believed they had a case to answer for when they agreed to go to mediation. Despite all that, the Court found that objectively no grievance was raised.
What this means is it doesnt matter what the parties think has happened. Even if everyone agrees that the claimant has a grievance, this is not enough to be able to pursue it. An employer is of course entitled to decide that a grievance has not been raised. But he has to do so in a clear and unambiguous manner. One would think that agreeing to go to mediation is clearly acceptance and acknowledgment that yes, a grievance was raised and yes, we, the employer understand what this is about and are happy to attend. Right to challenge waived, period.
So, whats the lesson? Raise your grievance by using the word grievance, refer to what happened, why you think it was unjustified and what you want. It doesnt matter whether it makes sense or not, whether your remedies are completely out of proportion or your reasons laughable – do it, otherwise you might lose out completely.