This was an interesting question that I recently had to consider in a preliminary hearing before the Employment Relations Authority. Now to me, a personal grievance is simply conduct by an employee that puts an employer on notice that an employment issue has arisen which needs to be addressed. In general terms, a type of complaint.
There is no requirement in employment law (or any ‘hard-and-fast’ rule) that dictates that a personal grievance must be raised in writing, or that the aggrieved employee must utter the magic words – “I am raising a personal grievance” for the meaning to be clear. Yet, this was the very situation that I found myself arguing before an unrelenting employer.
Here, the applicant employee genuinely believed they had raised a personal grievance by approaching their line manager for a meeting to express concerns about their current working conditions. In this meeting, the applicant openly complained that she was experiencing negative treatment at the hands of co-workers and asked to transfer departments. When giving her evidence at the hearing, the line manager acknowledged that the applicant had displayed raw emotion in what she described as a “charged” meeting. Although the line manager immediately saw alarm bells and regarded the matter as serious, it seems that management did not. Despite bringing the issues to management’s attention, the employer took no interest and failed to respond to either the line manager or the applicant. The concerns went unaddressed culminating in a complete breakdown of trust and confidence in the employment relationship.
At the hearing, the employer unwisely argued that it had been under no duty to act or respond to the applicant’s concerns on the basis that no formal grievance had been raised. Instead, the applicant had done nothing more than merely “vent her frustration”.
Well, I am pleased to report that common-sense prevailed and the applicant’s claim has been allowed to proceed to a substantive hearing. Despite not placing her concerns in writing or uttering the actual words “personal grievance” to the line manager, the Authority believed that it was abundantly clear that the applicant had a grievance worthy of investigation and the employer had wrongly failed to act.
When raising her concerns with the line manager, the applicant had spoken of her concerns about the poor working conditions; described the negative behaviour towards her plus the emotional effect these issues were having on her well-being; and asked for an internal transfer – all these factors made it reasonable for the applicant to assume that the meeting was tantamount to raising an oral grievance.
This is a sensible and just decision. It reaffirms the position that grievances do not have to be set out in writing, nor does an aggrieved employee have to vocalise the words “personal grievance” for the employer to be put on notice that an employment relationship issue has arisen. Providing that the concerns are “set out in sufficient specificity for the employer to know what it is to address” (from the standpoint of an objective observer) then this constitutes a grievance and should be treated as such.
Let this decision be a stark warning to employers that just because an employee may not say they are raising a grievance, or handover a formal letter of complaint, does not mean that a personal grievance hasn’t arisen. Always be on the look-out! To read the full judgment,
click – http://apps.employment.govt.nz/determinations/PDF/2018/2018_NZERA_Auckland_10.pdf