Worker says employer failed to address bullying behaviour

The Employment Relations Authority recently dealt with a case involving a worker who sought to pursue a personal grievance against his former employer.

The worker, who had been employed as a tow truck and vehicle recovery operator from July 2020 to June 2022, claimed that the employer failed to adequately address bullying behaviour by another employee and that the company's director had mistreated him.

The case served as an example of the challenges workers may face when attempting to raise personal grievances against their employers.

It also highlighted the importance of understanding the legal requirements and time limits set out in the Employment Relations Act 2000 for pursuing such claims.

The Employment Relations Act 2000

According to the Authority, the Employment Relations Act 2000 is the primary legislation governing employment relations in New Zealand. The Act sets out the rights and obligations of employers and employees, as well as the processes for resolving employment relationship problems, including personal grievances.

Under the Act, a personal grievance can be raised for various reasons, such as unjustified dismissal, discrimination, sexual harassment, or unjustified disadvantage.

In this case, the worker sought to raise a personal grievance based on the claim that his employment conditions were affected to his disadvantage by unjustifiable actions by his employer.

The 90-Day Time Limit

One of the key requirements for raising a personal grievance is the 90-day time limit. Section 114(1) of the Employment Relations Act 2000 states that an employee who wishes to raise a personal grievance must do so within 90 days from the date on which the action alleged to amount to a personal grievance occurred or came to the employee's notice, whichever is later.

This time limit is crucial, as it determines whether the Employment Relations Authority has the jurisdiction to investigate and determine a personal grievance claim.

The Authority found that the worker had not raised his grievances within the required 90-day period.

The Authority's investigation

The Authority conducted an investigation "on the papers," which means that it relied on written evidence and submissions provided by the parties, rather than holding an oral hearing. The Authority examined various documents, including the worker's statement of problem, the employer’s statement in reply, and an affidavit from the worker.

The Authority's determination focused on the jurisdictional issue of whether the worker could be permitted to pursue his personal grievance. It considered the relevant provisions of the Employment Relations Act 2000, the worker's employment agreement, and the principles governing the raising of a personal grievance.

After analysing the evidence and applying the relevant legal principles, the Authority concluded that the worker was out of time to pursue a personal grievance of unjustified disadvantage.

The decision stated, "Lacking any evidence that he had done so at any earlier point, no grievance was shown to have been raised within the time that would give the Authority jurisdiction to investigate or determine."

The Authority also found no exceptional circumstances that would justify granting the worker leave to pursue his grievance outside the statutory time limit. As a result, the Authority determined that it did not have the jurisdiction to investigate the worker's application.

The case underscored the significance of timely action when raising a personal grievance. As the Authority pointed out, "If he had included a grievance claim in that application, it would (once served on [the employer]) have been raised in time."