Earlier this month we wrote an article on Grey Advice, navigating the grey areas of Employment Law. Usually the Law is black and white, but the test of reasonableness and the requirement to act in good faith are two key examples of how important it is to have expert advice. Clear understanding is especially important when an unhappy employee threatens a personal grievance.
People raise personal grievances because they
are hurt, angry or upset, not because
they understand employment law.
Unfortunately some employees can be quick to threaten a personal grievance, and there are plenty of no-win-no-fee lawyers in New Zealand who make their money supporting these claims. The most important advice we can give you is not to panic, and not to ignore the claim.
So, what should you do if you are given a personal grievance letter?
Begin by assessing the case against you. If you have followed a clear and consistent employment and disciplinary process, there’s a good chance your employee will recognise this. However if you haven’t acted in good faith, it’s important to get expert advice on how to manage the risk associated with your choices.
- If your ex-employee has a solid case and you are in the wrong, we advise that you open a ‘without prejudice’ discussion. You are going to have to pay a personal grievance, so we suggest that you minimise your legal bill.
- If you have been fair, consistent, and have legally compliant tools in place, the claimant will have no grounds for a grievance. Write back to your ex-employee explaining why they don’t have a personal grievance claim. Often this will be the end of the matter.
- Occasionally a claimant will raise some good points, but be pushing their luck. In this case you can either consider having that ‘without prejudice’ discussion, or decide to write back and refute the allegation.
The average cost to lose a personal grievance claim at the Employment Court is $35,000, so it’s important to be aware that it may be less expensive to pay-out an ex-employee than to defend a claim. You have the right to negotiate a full-and-final settlement agreement at any time, which means both parties waive their rights to take further legal action against the other.
Don’t be nervous about grievance issues; just be fair, consistent and ensure you have all the legally compliant tools in place.
Can an employee bully a company?
The duty to act in good-faith in the employment relationship works both ways. No one is entitled to act in an intimidating manner in the workplace, and the principals of trust and good-faith also apply to employees. If a member of your team is actively undermining the business, we suggest you have some straight talks about what is, and what is not acceptable behaviour. If an employee then cries ‘bully’, initiate an independent investigation. A formal investigation will keep your decisions fair and reasonable, and people will be more likely to leave on good terms, minimising the risk of expensive repercussions.
Should I represent myself at the Employment Court?
This is one of those tricky situations where we don’t recommend doing it yourself. Give us a call on 0800 HRtoolkit (0800 47 86 65) and we will talk you through the most cost effective ways to defend a personal grievance.
Give us a call on on 0800 HRtoolkit (0800 47 86 65). We don’t charge for those quick questions, and often a few minutes with our experts is all you will need. Visit HRtookit.co.nz, our bills aren’t big but the cost of getting it wrong can be huge.