Most people are aware of the personal grievances for unjustified disadvantage and unjustified dismissal, but did you know that there are 11 different personal grievances?
I've written separate posts for the personal grievances for unjustified disadvantage, unjustified dismissal and sexual and racial harassment.
The aim of this post is to cover the remaining 7 personal grievances.
Section 103(1)(c): Discrimination
An employee may raise a personal grievance if they have been discriminated against by their employer, or a representative of their employer. The prohibited grounds of discrimination are contained within section 105:
Sex
Marital status
Religious belief
Ethical belief
Colour
Race
Ethnic or national origins
Disability
Age
Political opinion
Employment status
Family status
Sexual Orientation
In accordance with section 104, you may be able to raise a personal grievance if, for one of the reasons above, your employer or a representative of your employer has:
Refused or omitted to offer or afford you the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances.
Dismisses you or subjects you to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment.
Retires you, or requires or causes you to retire or resign.
There are some exceptions, which you can read about here.
Section 103(1)(da): Person affected by family violence
Refer to section 108A of the Employment Relations Act 2000.
For the purposes of sections 103(1)(da) and 123(1)(d), an employee is treated adversely in the employee’s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence if, on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence (as that term is defined in section 69ABA), that employee’s employer or a representative of that employer:
Dismisses that employee, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed; or
Refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same qualifications, experience, or skills employed in the same or substantially similar circumstances; or
Subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be subjected to such detriment; or
Retires that employee, or requires or causes that employee to retire or resign.
Subsection (1) applies regardless of how long ago the family violence occurred or is suspected or assumed or believed to have occurred, and even if the family violence occurred or is suspected or assumed or believed to have occurred before the person became an employee.
Section 103(1)(f): Union Membership
For the purposes of section 103(1)(f), an employee is subject to duress in that employee’s employment in relation to membership or non-membership of a union or employees organisation if that employee’s employer or a representative of that employer directly or indirectly—
makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee’s employment; or
makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee’s employment; or
exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee—
to become or remain a member of a union or employees organisation or a particular union or employees organisation; or
to cease to be a member of a union or employees organisation or a particular union or employees organisation; or
not to become a member of a union or employees organisation or a particular union or employees organisation; or
in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or
on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or
to participate in the formation of a union or employees organisation; or
not to participate in the formation of a union or employees organisation.
In this section and in section 103(1)(f), employees organisation means any group, society, association, or other collection of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it.
Section 103(1)(g): Failure to comply with Part 6A
An employee may raise a personal grievance if their employer has failed to comply with a requirement of Part 6A of the Employment Relations Act 2000. This is a rarely used grievance, but it is designed to provide protection to specified categories of employees if, as a result of a proposed restructuring, their work is to be performed by another person.
Every employment agreement must have an employee protection provision for vulnerable and other employees. You can read more about Part 6A in the Act; however, it may be useful to read MBIE's sample clause below:
Vulnerable workers
Some employees who do certain jobs, like cleaning or caretaking services, as set out in the Employment Relations Act Schedule 1A, can have their jobs transferred to the new employer. This happens if their work is to be performed by the new employer, unless the new employer is exempt.
Their rights and entitlements are set out in Subpart 1 of Part 6A of the Act.
All other employees
This clause applies in the event that the employer proposes to restructure (as defined in section 69OI of the Employment Relations Act 2000), and the work the employee performs may or will be performed for or by a new employer.
The employer will start talks as soon as they can with the new employer about the impact of the restructuring on the employee. This will include negotiating whether the employee can transfer to the new employer, and if so, whether this will be on the same terms and conditions.
The employer will:
schedule talks with the new employer
tell the employee about the upcoming talks and the intended timeframes
tell the employee what will generally be discussed
arrange for senior representatives of the employer to engage in the talks with the new employer
subject to any statutory, commercial confidence or privacy issues, give the new employer all information about affected employees, including details of terms and conditions of employment
encourage the new employer to offer all affected employees jobs with generally the same or better terms and conditions
report back to the employee on the outcome of the meetings to the extent they relate to the employee.
Whether the employee is offered ongoing employment, and on what terms and conditions, will ultimately be the decision of the new employer.
If the employee does not transfer to the new employer, the existing employer will determine what entitlements (if any) are available to the employee by discussing with the employee:
whether there are any options available to remain in employment with the employer
their redundancy entitlements under this agreement (if any), and what this could mean for the employee, including notice arrangements
whether the employer can offer any additional support to the employee, eg a reference.
The employer will consider the employee’s comments and confirm in writing the outcome of these discussions to the employee.
Section 103(1)(h): Employment Agreement not in accordance with Act
An employee may raise a personal grievance if they had been disadvantaged by their employment agreement not being in accordance with any of the following sections:
Section 67C: An employment agreement must contain agreed hours of work. This means that a permanent employee must be provided with guaranteed minimum hours.
Section 67D: This includes a number of rules relating to availability (or "on call") provisions. Importantly, an employee must be compensated for making themselves available (or being "on call").
Section 67G: This relates to the cancellation of shifts, and when an employer is able to cancel a shift. Importantly, an employment agreement must provide a reasonable period of notice that must be given before the cancellation of a shift, and if that notice is not provided, the employee must be paid a reasonable compensation.
Section 67H: An employer must not unfairly restrict a person from performing work for another person.
However, to claim a personal grievance in accordance with this section, it is not enough to simply claim that the employment agreement does not comply with the provisions in the act: the employee must show that they have been disadvantaged.
This means that the employee must show that the non-compliance affected them. One common example relates to an employee without guaranteed hours. Due to the lack of guaranteed hours, this employee will not likely have consistent hours and will not have financial security on a week-to-week basis. This is inherently disadvantageous to the employee.
Section 103(1)(i): Employee not to be treated adversely because of refusal to perform certain work
An employee may raise a personal grievance under section 103(1)(i) where the employee's employer has contravened either:
Section 67F: An employer must not treat an employee adversely who has refused to perform work in excess of their guaranteed hours (and where there is no availability provision).
Section 67G(3): If an employer cancels a shift, they must provide the specified notice or pay the employee the compensation agreed in the employee's employment agreement.
Section 103(1)(j): Health and Safety
An employee may raise a personal grievance under section 103(1)(j) when that employee’s employer has, in relation to the employee:
engaged in adverse conduct for a prohibited health and safety reason; or
contravened section 92 of the Health and Safety at Work Act 2015 (which prohibits coercion or inducement).
You can read more about this in section 110A of the Employment Relations Act 2000.
Legal AF Limited t/a Ashleigh the Advocate
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