Employment Court looks at dispute involving triangular employment
The Employment Court recently dealt with a complex case involving a worker's attempt to add a third party to her personal grievance claim against her employer.
The case centred around the intricacies of raising personal grievances and the requirements for joining controlling third parties under New Zealand employment law.
It highlighted the importance of following proper procedures when raising grievances and the challenges that can arise in triangular employment relationships.
Raising personal grievances
The worker in this case was employed by a labour hire company, Whver, and assigned to work for another company, Passion Fresh, that provided fresh produce. Issues arose regarding pay, discrimination, and health and safety concerns.
The worker initially raised these issues with the fresh produce company she was assigned to, rather than her actual employer, the labour hire company.
On 11 April 2021, the worker sent an email to the fresh produce company questioning her recorded working hours and pay, alleging discriminatory work allocation, raising health and safety concerns, and claiming she was not receiving proper breaks.
The fresh produce company responded the next day, addressing the pay query and seeking permission to refer the other matters to other managers.
The court emphasised that for a personal grievance to be properly raised, the employee must make their employer aware of the substance of the complaint. As the judge noted:
"It is insufficient for an employee simply to advise an employer that the employee considers that he or she has a personal grievance, or even specifying the statutory type of personal grievance. The employer must know what it is responding to; it must be given sufficient information to address the grievance, that is to respond to it on its merits with a view to resolving it soon and informally, at least in the first instance."
This highlights the importance of clarity and specificity when raising grievances with an employer.
Triangular employment relationships
The case illustrated some of the complexities that can arise in triangular employment relationships, where a worker is employed by one company but works under the direction of another.
On 13 April 2021, the worker met with representatives of the fresh produce company and was informed that her work assignment had ended. She subsequently sent an email expressing her dissatisfaction with this decision, stating she had been "fired" from her position as a "subcontractor".
The worker then contacted the Ministry of Business, Innovation and Employment (MBIE) seeking assistance. The fresh produce company corresponded with MBIE's Early Resolution Team, providing detailed responses to the worker's complaints.
The worker sought to join the fresh produce company as a controlling third party to her grievance. However, the court found that she had not properly raised a grievance with her actual employer, the labour hire company, within the required timeframe.
The judge explained:
"The whole purpose of being able to join a controlling third party to an Authority investigation is to resolve a personal grievance as between the employee and employer. If appropriate an apportionment of liability can occur, but the ability to join the third party is not a mechanism which allows the employee to sidestep involving his or her employer."
This emphasises that employees must still follow proper procedures with their direct employer, even if issues arise with a third party they are assigned to work for.
The court's conclusion
Ultimately, the court dismissed the worker's challenge to join the fresh produce company to her grievance claim. The judge concluded:
"[The worker] has not established that a personal grievance was raised with Whver in relation to which Passion Fresh is able to be joined as a controlling third party."
This outcome underscores the importance of understanding and following the correct legal procedures when raising employment grievances. The court further noted:
"The absence of a personal grievance or personal grievances between [the worker] and Whver for discrimination and unjustified disadvantage is fatal to the application seeking to join Passion Fresh to the litigation in the Authority."
Finally, addressing arguments about the sequence of notifications, the court clarified:
"I agree that s 115A does not specify any order in which notices must be given. The Act is complied with so long as the employer and controlling third party receive notice within the relevant notification period."
This case serves as an important reminder for employees and employers alike about the specific requirements for raising personal grievances and joining third parties to employment disputes.