Are you an aggrieved employee thinking of raising a grievance? Or, are you an employer worried that an ex-employee will not go quietly? If the answer to either of these questions is “yes” then how important is the statutory 90-day rule to you?
For those of you who have no idea what I am referring to, fear not, you are not alone. All too often I meet employees on the verge of raising grievances (never quite able to make up their mind until their delay renders it too late); or, employers wondering how long they must wait until they are technically out of the ‘danger zone’.
The answer is a clear and simple 90-days (no more, no less)…..unless, of course, there are “exceptional circumstances”.
In the recent case of Chadwick v Serco (NZ) Limited, the Authority once again reinforced its commitment to the rule by dismissing Mr C’s claim brought just outside the 90-day timeframe. Having started employment in February 2016, Mr C felt pretty aggrieved when his employment was cut short on the grounds of redundancy only two months later. Whilst he made his concerns known to colleagues, Mr C failed to raise a formal grievance with his employer until 98 days later. He claimed to have no knowledge of any limitation period (having not read his employment agreement), and in any event, had been so traumatised by the abrupt dismissal, that he suffered depression and was in no fit state to properly consider raising a grievance beforehand.
Unsympathetic to his plight, the Authority remained resolute.
For a grievance to be raised outside of the 90-day timeframe, there must be “exceptional circumstances”. In the words of Mr C, “not being in a clear-thinking headspace for several weeks” was not a good-enough excuse. The statutory test for meeting the “exceptional circumstances” threshold requires a high standard of proof – the reasons for the delay must be so serious as to almost border on incapacity – in reality, many cases will never meet this test!
Whilst the Authority failed to give any clear guidance as to what sort of circumstances would be deemed exceptional to bypass the 90-day rule, the inference is that the aggrieved should be almost physically incapable of bringing a claim. This seems rather harsh and I question the reasonableness of the decision.
Nevertheless, the law is clear.
My advice – always read the employment agreement. It is a legal requirement for the time limit to be clearly set out. The law only allows 90 days for a grievance to be raised so if you’re an (ex) employee thinking of raising grievance, the message is clear – do not delay. On the other hand, if you’re an employer wondering how long you must wait before you can breathe easy, it seems you won’t have to wait long. Regardless of the reasonableness of the decision, the clock is ticking.