A “personal grievance” can be raised without using those words - Employment Law Update November

In a recent judgment, the Employment Court has considered the provisions of the Employment Relations Act 2000 relating to the requirement that an employee raise a personal grievance within 90 days of the action complained about occurring or coming to the attention of the employee: Chief Executive of Manukau Institute of Technology v Zivaljevic [2019] NZEmpC 132. The judgment discusses how communications from an employee to an employer can amount to the raising of a personal grievance even if the words “personal grievance” are not used by the employee.

The judgment also serves as a useful reminder to employers of the importance of including in an employment agreement a plain language explanation of the services available for the resolution of employment relationship problems.


Factual background


Manukau Institute of Technology (MIT) is an educational institution. In 2017, MIT undertook a review of its academic faculties, which led to several proposed changes being announced in November 2017. The plaintiff (Mr Zivaljevic) was among a number of employees affected by the proposed restructure. After a formal consultation process, Mr Zivaljevic’s position was disestablished. His employment ended on 22 December 2017.

Mr Zivaljevic has several grievances relating to MIT’s review process and outcome. These include a claim of unjustified dismissal, a claimed lack of genuineness of his redundancy and further issues relating to MIT’s redeployment discussions and its purported lack of good faith. He also had issues concerning his lack of access to emails and MIT’s database storage systems.

In a preliminary determination, the Employment Relations Authority determined that Mr Zivaljevic’s communications with MIT did amount to the raising of a personal grievance for unjustified dismissal within 90 days of the termination of his employment: Zivaljevic v Chief Executive of Manukau Institute of Technology [2019] NZERA 77.1 MIT challenged that finding.

The issue on appeal in the Employment Court was whether the totality of Mr Zivaljevic’s communications with MIT raised a personal grievance and whether the employment agreement had a “plain language explanation” of how an employment dispute could be resolved in accordance with s 65 of the Act.


Communications between Mr Zivaljevic and MIT


Following the termination of his employment, Mr Zivaljevic and MIT engaged in email correspondence lasting a month in early 2018. There were no relevant oral communications.

Mr Zivaljevic’s emails were addressed to MIT’s Executive General Manager, People and Culture, Mr Bhimy. In summary, the correspondence was as follows:

1. On 5 January 2018 Mr Zivaljevic emailed Mr Bhimy. He sought clarification concerning his redeployment opportunities, obtaining pay slips indicating the breakdown of his redundancy payment and access to his MIT email account and Google Drive. On 18 January 2018 Mr Bhimy responded to each of these concerns.2. On 19 January 2018 Mr Zivaljevic responded noting that he had been advised that his employment would be terminated by redundancy on 29 January 2019 which meant he expected to have continued access to his email account and files until this date. This was significant as Mr Zivaljevic believed he required access to these documents in order to raise a personal grievance. Mr Bhimy responded on 24 February 2018.3. On 26 January 2018 Mr Zivaljevic advised Mr Bhimy that MIT had served him with what he saw as “an unjustified dismissal”. He advised that he was planning to question the decision through a personal grievance which he intended to send as soon as he was given access to the required information by MIT. Mr Zivaljevic also raised the issue of redeployment and stated that MIT ignored good faith obligations regarding redeployment. Significantly, Mr Zivaljevic asked Mr Bhimy to consult the MIT legal team: “I expect your comment on this as this is one of the important points that contributed to my personal grievance”. Mr Bhimy responded by saying he considered the matter of Mr Zivaljevic’s redundancy was closed.


Was a Personal Grievance Raised?


MIT argued that an objective observer would not consider Mr Zivaljevic was raising a personal grievance in his email correspondence. The emails were no more than notice that a personal grievance would be raised in the future. MIT also claimed there was insufficient particularity of any grievance, which prevented it from addressing and remedying Mr Zivaljevic’s claims. According to MIT, his emails were simply a request to gain access to information which would assist in raising a personal grievance at a later date.

Section 114(2) of the Act provides:

…a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.

This must be done within 90 days of the action alleged to amount to a personal grievance occurring or coming to the notice of the employee.

What amounts to the raising of a personal grievance turns on its own facts but the key principles are clear. The Court noted that the grievance process is designed to be informal and accessible. A personal grievance may be raised orally or in writing. There is no magic formula to be used. Where there has been a series of communications, each piece of individual correspondence, as well as the totality of the communications, should be examined to determine whether they singly or together constitute the raising of a personal grievance.

The Court emphasised that it is irrelevant whether the employer recognises the complaint as a personal grievance or what the employee’s intention with respect to the complaint is. It is however important that the complaint sufficiently informs the employer of the nature of the grievance and provides the employer with sufficient information to respond.

Examining the correspondence, in this case, the Court accepted that the combined effect of Mr Zivaljevic’s emails was more than a mere request for information. His emails clearly showed he was unhappy with MIT’s redeployment process and he did not believe he had been treated fairly. He advised that MIT had ignored its good faith obligations.

Although Mr Zivaljevic agreed that he had not intended his emails in January 2018 to be his submission of a personal grievance, Judge Holden nevertheless noted that a person may still objectively be submitting a personal grievance despite not understanding that they were doing so. The key point is whether the employer was provided with enough detail of the grievance to respond to it.

The Court concluded that MIT knew Mr Zivaljevic disagreed with the process it had followed and its failure to offer him redeployment. MIT was provided with sufficient information about Mr Zivaljevic’s complaint for it to respond to it. On this basis Mr Zivaljevic had raised a personal grievance for unjustified dismissal within 90 days of the end of his employment.

Plain language explanation

Section 65(2)(a)(vi) of the Act provides that an individual employment agreement must include:

…a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the period of 90 days in s 114 within which a personal grievance must be raised…

The Court noted that the requirement for the explanation of services available to be in “plain language” is significant as an employee needs to understand his or her rights and obligations when an employment relationship problem arises. Where an explanation is not in plain language, so it is not clear to an employee what his or her rights and obligations are, there has not been compliance with the Act.

Turning to the plain language explanation in the employment agreement, in this case, the Court found that the “Disputes and Personal Grievances” clause was difficult to follow. It conflated the procedures that MIT had in place for resolving employment issues with the statutory requirements the employee needed to know about. The clause noted that the employee “may” use this procedure for raising an issue which incorrectly indicated that the process for raising a personal grievance was optional. The clause also referred to a grievance being notified in writing when the Act does not require this.

The Court held that the clause did not comply with the obligation to provide a plain language explanation of the dispute resolution process under the Act.


Conclusion — What does this case mean for employers?


The key principles set out, in this case, serve as a useful reminder of what is considered to be sufficient to amount to an employee raising a personal grievance:

  • Just because an employee has not used the words “personal grievance” does not mean they have not raised one. It is the totality of the circumstances that determine whether they have done so.

  • For a grievance to have been raised, the employer must know what they are responding to. They must have been given enough information to address the grievance (to respond to it with a view of resolving it soon and informally).

  • It is insufficient for an employee to simply advise his or her employer that s/he considers s/he may have a personal grievance (or specifying the statutory type of personal grievance).

Finally, this case is a reminder that all employers have a statutory duty to ensure that employment agreements contain a plain language explanation of how employment disputes can be resolved under the Employment Relations Act. As the Court makes clear, the employee’s rights and obligations under the Act should be set out unambiguously and accurately. And the employer should not confuse its internal policies and processes for resolving disputes with those provided by the Act. It is important to get this right as the failure to have a plain language dispute resolution process in the employment agreement is one of the exceptions under which an employee may potentially be granted leave to pursue a personal grievance despite it not being raised within the 90-day time limit.


Reproduced with the permission of Wolters Kluwer NZ


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