Introduction
Under the Employment Relations Act employees can raise a personal grievance if they believe that they have been:
- Unjustifiably dismissed.
- Disadvantaged in their employment because of some unjustified action of the employer.
- Discriminated against in their employment.
- Sexually or racially harassed at work.
- Subject to duress because of their membership or non-membership of a union or employees’ organisation.
Unjustifiable Dismissal
The personal grievance procedure is the only avenue open to an employee who wishes to challenge his or her dismissal.
Discrimination
Discrimination on any of the grounds prohibited under the Human Rights Act gives grounds for personal grievance.
Discrimination on the basis of an employee’s involvement in the activities of a union is also prohibited. In any case where an employee who is (or has been) involved in union activities is treated differently, is dismissed, or is required to retire or resign, there is a rebuttal presumption that there was discrimination on the grounds of union involvement. In other words, the onus is on the employer to prove that the action taken was justified or that a permitted exception applied.
Harassment and Bullying
Harassment includes any unwelcome comment, action or gesture towards another person that they find insulting, humiliating or offensive. The behavior may be repeated or a one off incident, but is behavior that is significant enough that it adversely affects the other person’s performance or working environment. Harassment is behaviour that is unwanted by the recipient even if the recipient does not tell the harasser it is unwanted. Harassment and offensive behaviour are unacceptable, including the following examples:
- Unwelcome and suggestive scrutiny of physical characteristics.
- Improper suggestions, physical closeness or contact, verbal innuendoes, and jokes or comments of a sexual or racial nature.
- Mocking remarks about appearance, race, colour or speech.
- Display of offensive printed or electronic material.
- Ostracism.
- Bullying.
- Unwelcome requests for sexual contact or actual physical contact.
- The use of words of a sexual nature whether written or spoken.
Bullying is defined as repeated and unreasonable behavior directed towards another person at work that creates a risk to health and safety. Bullying includes victimising, humiliating, intimidating, or threatening another person.
If practicable steps are not taken and the behaviour is repeated, the employee may have a personal grievance under the Act. In addition to the remedies available for personal grievances generally, the Authority or Court may make recommendations to the employer as to the actions that should be taken to prevent further harassment. These recommendations may include the transfer of the perpetrator to a different position, or take disciplinary action or rehabilitative action in respect of the perpetrator.
If the employment relationship problem relates to discrimination or sexual harassment, services available for the resolution of the problem include either application to the Employment Relations Authority for the resolution of the grievance or a complaint under the Human Rights Act 1993, but not both.