An employee must give enough details when raising a grievance
Bronwyn Higgins worked for Spa & Pool Warehouse Ltd in Auckland as a Customer Service Representative. On 22 April 2011 she was dismissed by her boss, Mr Hall.
Miss Higgins had 90 days within which to raise her personal grievance. The 90 days started on 22 April and expired on 20 July 2011. It wasn’t until 5 August that Miss Higgins lodged a Statement of Problem with the Employment Relations Authority who served it on the Spa and Pool Warehouse. The Company said that when it received the Statement of Problem on the 6th of August this was the first time it became aware that Miss Higgins was claiming a grievance for unjustified dismissal. The Company refused consent to allow Miss Higgins to raise her grievance outside the 90 days.
Miss Higgins argued that she had in fact raised her personal grievance claim in an email to Mr Hall dated 26 April 2011 which stated: -
“Simon as I stated I am very unhappy, with your reasoning for my termination. And your reasoning is not fair or legal. I am contacting you again, as to work out the situation. (sic) As I have said I have talked to the Labour Department, there are the three options, compensation, mediation and court. The ball is now in your court.”
Several emails followed in which Miss Higgins asked if the Company would participate in mediation. Mr Hall asked her to clarify what the employment issue was.
The Authority cited various Employment Court decisions on how a grievance should be raised, in particular the decision of Creedy v Commission of Police in which the Employment Court held -
“...it is insufficient, and therefore not a raising of the grievance, for an employee to advise an employer that the employee simply considers that he or she has the personal grievance or even by specifying the statutory type of personal grievance as, for example, unjustified disadvantage in employment”
The Authority found that the phone call Miss Higgins had made and her email of 26 April did not properly raise a grievance because they did not make it clear that she had commenced a grievance process and that legal consequences could potentially follow. The Authority held that it was not enough for Miss Higgins to merely state that she was unhappy with Mr Hall’s reasons for ending her employment. Further, Miss Higgins had not asked for any remedies so the Company did not know how Miss Higgins wanted her grievance resolved.
The Authority said that merely proposing the three options of compensation, mediation or court, was not a proper explanation of how she wanted her grievance resolved. The Authority said that Miss Higgins' communications with Mr Hall did not go any further than merely expressing her dissatisfaction and unhappiness with the reasons given for ending her employment. Accordingly the Authority held that because she had laid her grievance outside the 90 day time frame the Authority did not have jurisdiction to hear it.
[Higgins v Spa & Pool Warehouse Ltd [ NZERA Auckland 440; 11/10/2011; R Larmer]
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