ERA rules vague accusations insufficient for successful workplace grievance
The Employment Relations Authority (ERA) recently heard a case involving a worker who claimed unjustified disadvantage and constructive dismissal. She alleged being overlooked for promotion, experiencing uninvestigated bullying, being denied proper breaks, and ultimately being forced to resign. Her former employer contested these claims, arguing most grievances weren't properly raised within the required statutory timeframe.
The worker had been employed since July 2018 as a food and beverage attendant at a hotel. She initially submitted a resignation on June 30, 2022, stating "it has been a pleasure working for the Chateau all these years." Following discussions with HR, she agreed to take leave instead of resigning and formally retracted her resignation on September 2, 2022. She took leave from September 5 to October 30, 2022, but did not return afterward.
On November 18, 2022, she submitted a second resignation to HR, writing: "Unfortunately I won't be coming back to work. I'm really sorry I know you all have made an effort waiting for me but I'm not ready to work at the moment. Going through a lot of things." HR accepted this resignation, ending the employment relationship.
Nearly seven months later, on June 12, 2023, a representative for the worker contacted the employer regarding a personal grievance allegedly raised on January 28, 2022, about being overlooked for promotion to lounge bar manager. The employer acknowledged awareness of this grievance and provided evidence showing they had met with the worker at the time and resolved it by promoting her to a managerial position.
The employer stated that the worker's other claims—bullying, insufficient rest breaks, and constructive dismissal—were never raised before her statement of problem filed on December 15, 2023, more than a year after her employment ended. They objected to these claims as being outside the 90-day period for raising personal grievances under section 114 of the Employment Relations Act 2000. They also noted significant business changes had occurred since her departure, including winding up operations at the hotel and substantial staff turnover.
Regarding the promotion dispute, the ERA determined this grievance was properly raised on January 28, 2022. A February 10, 2022 letter from the employer acknowledged receiving this grievance and noted that a manager had discussed it with her, but she requested a formal response. Meeting notes from February 14, 2022, showed two managers agreed to promote her to banquets operations manager. The notes indicated she "accepted this promotion and stated that she considered the matter resolved."
The ERA found it significant that the worker sent no follow-up correspondence after this resolution, concluding she had "expressed herself clearly and firmly, and [the employer] had responded positively." The ERA determined this matter was resolved at the time and the worker was "estopped from raising this claim again after its resolution to her benefit and satisfaction."
For the bullying claims, the worker relied on a witness statement from her former manager, who claimed he reported various grievances to his own manager and later to the Labour Inspectorate after his employment ended in May 2022. The ERA noted that communication with the Labour Inspectorate after the manager left did not constitute the worker raising a personal grievance with her employer as required by law. The ERA stated: "Grievances must be raised with the relevant employer not third parties."
Furthermore, the ERA found the manager's statement lacked important details about the alleged incidents and when they occurred. Citing previous case law, the ERA emphasized: "For an employer to be able to address a grievance as the legislation contemplates, [the employer] must know what to address." The ERA was concerned that the statement contained no specifics about what constituted "abuse" and included no dates for the alleged incidents or when they were reported.
The ERA reviewed emails the worker sent in December 2021 and February 2022 which mentioned concerns about split shifts, workload, and communication issues. These appeared to have been addressed in the February 2022 meeting where she received her promotion.
Regarding rest breaks and constructive dismissal, the ERA found no evidence that these concerns were raised before December 2023, well outside the 90-day period. The worker's resignation emails contained no suggestion of dissatisfaction with employment conditions. The ERA noted that her communications indicated "she was willing and able to raise her concerns, hold her ground and insist on a formal response rather than an informal one, and actively negotiate alternative outcomes that were objectively beneficial to her."
The ERA concluded that all claims were either resolved at the time or not raised within the required timeframe, dismissing all claims and reserving the matter of costs, while encouraging the parties to resolve cost issues themselves.
