Raising (and defending) a personal grievance

The Employment Relations Act 2000 sets out the recognised grievance grounds: unjustified dismissal; unjustified disadvantage (an action by the employer that disadvantages the employee in their employment); discrimination; sexual or racial harassment; and duress over union membership. Unjustified dismissal and disadvantage make up the overwhelming majority of claims.

Constructive dismissal — resignation forced by the employer's conduct — is run as an unjustified dismissal claim, but it carries an extra burden: the employee must show the resignation was a foreseeable consequence of the employer's breach, which makes early advice before resigning especially important.

A grievance must be raised with the employer within 90 days of the action complained of, or of the employee becoming aware of it. Since 2023, sexual harassment grievances have a 12-month window. Raising a grievance is not a court filing — a clear written communication to the employer identifying the grievance is enough — but it must happen inside the window.

Out of time, the employee needs either the employer's consent or leave from the Employment Relations Authority, which is granted only in exceptional circumstances. The safe course is obvious: raise it early, in writing, and keep the proof.

The system is a ladder. The grievance is raised directly with the employer, and many resolve there. If not, MBIE's free mediation service is the next step — the Employment Relations Authority will almost always direct mediation before it investigates. The Authority itself is investigative rather than adversarial: it looks into the facts and issues a determination.

Either party can challenge an Authority determination to the Employment Court, by way of a full rehearing or on specific points. In practice the great majority of grievances settle at or before mediation, usually on terms recorded and signed off under s149 — which makes them full and final.

The statutory test under s103A is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances. The word "could" gives employers a margin — but the test looks squarely at process: was the concern properly raised, was the employee given the information and a real opportunity to respond, was the response considered with an open mind?

This is why substantively defensible decisions still fail. A genuine redundancy executed without consultation, or a dismissal for real misconduct decided before the employee was heard, produces a grievance the employer loses. Minor procedural defects are forgiven only where they did not result in unfairness.

The main remedies are reinstatement (sought less often, ordered less often still), reimbursement of lost wages — typically up to three months, extendable at discretion — and compensation for humiliation, loss of dignity and injury to feelings under s123(1)(c)(i). The Employment Court's banding approach grades those awards by the severity of the harm, and the bands have moved materially upwards in recent years.

Awards are also adjusted for employee conduct: contributory behaviour can reduce remedies substantially. On both sides, a realistic early view of the likely award — against the legal spend to get there — is what drives sensible settlement.

By the time a grievance letter arrives, the process that matters has usually already happened. The defence assessment starts with an honest audit: what does the paper trail show about consultation, disclosure, the opportunity to respond, and who decided what, when? Where the process holds up, the grievance can be resisted with confidence; where it does not, early commercial resolution at mediation is almost always cheaper than a determination that says so publicly.

The better spend is prophylactic. Tight employment agreements, documented processes and advice taken before the disciplinary or restructure decision — not after — is what keeps employers out of the Authority. Much of the chambers' employer-side work is exactly that.