A ‘personal grievance’ is an action that you can take against a current or former employer when you have an employment issue you are unable to resolve.
Raising a personal grievance must be done within 90 days of the issue arising and/or the last day of your employment. As per Section 114 of the Employment Relations Act 2000, in respect of any other personal grievance, the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is later.
Extended Time for Personal Grievance for Sexual Harassment
However, if you are raising a grievance due to sexual harassment, you have 12 months to do so. This came into play on the 13th of June 2023 when the “The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023” received Royal Assent. This amendment was made for the purpose of acknowledging the trauma sexual harassment victims hold. It is reasonable to provide an extended timeframe due to the difficulties with processing the event and then being able to speak up. It also allows the employer more time for an investigation to take place.
Other Exceptions for raising grievances
It is important to note that no action may be commenced in the Authority or the court in relation to a personal grievance more than 3 years after the date on which the personal grievance was raised in accordance with this section.
However if you have raised a grievance after the 90 days and before the three years; you have to request this be accepted from your employer. If the employer declines your request (and such request is more often than not, declined), you then must approach the Employment Relations Authority and submit an application for ‘leave’.
As per Section 114 of the Employment Relations Act 2000, the Authority will only grant leave if you can demonstrate that the delay of raising a grievance was due to “exceptional circumstances”.
Creedy v Commissioner of Police
The Supreme Court in Creedy v Commissioner of Police supported the term “exceptional circumstances” to mean a circumstance “which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare, but it cannot be one that is regularly, or routinely, or normally encountered”.
Exceptional circumstances may include:
- When the employee has been significantly impacted or traumatized by the incident leading to the grievance, such that they were unable to properly consider or raise the grievance within the prescribed time frame. In general, the court has interpreted “traumatized” as referring to a “substantial injury.”
- When the employee made reasonable arrangements for the grievance to be raised on their behalf, but the appointed representative (such as an advocate or lawyer) failed to ensure the grievance was submitted within the required timeframe.
- In Telecom v Morgan the Employment Court overturned the Authority’s determination to grant leave under s115(a) due to the applicant’s involvement with his solicitor during the 90-days, including the provision of all information relevant to his dismissal, and his attendance at job interviews.
- When the employee’s employment agreement does not include the required explanation concerning the resolution of employment relationship problems, as mandated by sections 54 or 65 of the Act.
- If you have been dismissed, you are entitled to request a written statement of the reasons for your dismissal from your employer. This request must be made within 60 days of receiving notice of the dismissal and the employer is required to provide the statement within 14 days of your request.
- When the employer has not fulfilled the obligation under section 120(1) of the Act to provide a written statement of reasons for the employee’s dismissal.
If you believe you have been unjustifiably disadvantaged or dismissed, please get in touch and one of our advocates will be able to support you in fighting for your rights.
Legal Disclaimer
The content posted on the Sacked Kiwis website should not be considered or relied upon as legal advice or opinion. The information presented here is not intended to serve as legal guidance. Over time, laws and regulations evolve, potentially altering the accuracy of previously shared information. Updates in jurisprudence or legislation (for example, changes to the Employment Relations Act), which could happen without immediate notice, may render the legal information on this platform outdated or obsolete. Seeking legal advice is always advisable.
Should you need employment advice, please don’t hesitate to contact us through our toll-free hotline.
Further Reading
Rethinking Cooling Off Periods ↗
Understanding the Personal Grievance Process ↗
