Employment Problems

Problem solving

The best way to deal with a workplace problem is to prevent it from occurring. As employers or employees you should make sure you have the information and guidance you need, both when setting up an employment relationship and when problems arise during the course of employment.

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Can you fix the problem yourself?    

The first steps are very important.

 You should try in good faith to resolve any problems yourselves before seeking mediation assistance or going to the Employment Relations Authority. Even if you do have to pursue the problem further, discussing and clarifying the problem first will save time in those processes. The following steps are a guide to resolving a problem.

First steps

1. Be clear about the facts.  Make sure that what you think has happened or is happening is not just based on an assumption you have made or a misunderstanding.
2. Talk to each other - Employers and employees should try to resolve the problem by discussing it with each other. Both parties are responsible for this. Union members can ask their union, and employers can ask their employers' association, to approach the other party for them.   If an employee believes they have a personal grievance, they must raise it with their employer within 90 days of the action complained of, or the date they became aware of it, whichever is the later.
3. Clarify whether you do have a problem, and if so, what your problem is. Don't delay this step. Discuss your problem with family or friends or advisers to     clarify what the problem actually is.

Next steps

If the problem is not resolved by discussion, either party may:

•  contact Employment Relations Infoline, (0800 20 90 20) who may provide access to mediation services (this can include making sure you have good information). They have a range of services that may help, including information, mediation, or guidance on what services are available and how to access them.

• take the problem to the Employment Relations Authority for a decision. The Authority will consider whether there is still a chance to resolve the problem by mediation. If so, they may direct the parties to discuss other ways to resolve the problem.

if not satisfied with a determination of the Authority, go to the Employment Court for a judicial hearing. The Court may also direct the parties to get further mediation assistance if it thinks that may be useful.

 Employees may ask a Labour Inspector to investigate the matter for them if the matter is covered by minimum rights legislation such as the Minimum Wage Act or the Holidays Act.

Do you need a representative?

In any employment relationship problem the employee and the employer both have the right to be represented by any person or organisation they choose. This can be a union, an employers' association, a lawyer, a community law office, an industrial relations advocate, family member or a friend.

 If you choose to have a representative, he or she may be able to:

• give you advice on particular employment-related issues
• help you prepare for an investigation in the Employment Relations Authority
• help you prepare your case and represent you at the hearing

Taking things further

The Employment Relations Act gives all employees the right to pursue a personal grievance if they have any of the following complaints:

• unjustifiable dismissal
• unjustifiable action which disadvantages the employee
• discrimination
• sexual harassment
• racial harassment
• duress over membership of a union or other employee organisation.

Unjustifiable dismissal

Any dismissal may result in a valid personal grievance for unjustifiable dismissal if:

•  the dismissal itself was not fair or reasonable, or

• the dismissal has been carried out in an unfair way.
  

• Unjustifiable action resulting in disadvantage

Employees may have a personal grievance if an employer does anything unjustifiable which disadvantages an employee in the job or work conditions.

Discrimination

An employee will have a personal grievance based on discrimination if an employer or an employer's representative discriminates because of the employee's:

• colour
• race
• ethnic or national origins
• sex (including pregnancy or childbirth status)
• marital or family status
• age
• disability
• religious or ethical belief
• political opinion
• employment status
• sexual orientation
• involvement in union activities, which includes claiming or helping others to claim a benefit under an employment agreement, or taking or intending to take employment relations education leave.

These grounds (apart from the last) are the same as the grounds in the Human Rights Act. In some circumstances, different treatment of employees on these grounds is acceptable. These circumstances are set out in the Human Rights Act. If in doubt, you should contact Employment Relations or the Human Rights Commission.

Discrimination for the above reasons can involve:

• refusal or failure to offer an employee the same:
• terms of employment
• conditions of work
• fringe benefits
• opportunities for training, promotion or transfer
• as other employees with the same or similar qualifications, experience or skills working in the same or similar circumstances
• dismissal or detriment by the employer or employer's representative in circumstances in which other employees doing the same kind of work are not, or would not be, treated in such a way
• retirement or being made to retire or resign by the employer.

Sexual harassment by a person in authority

An employee may have a grievance of sexual harassment against his or her employer if his or her employer or supervisor or a person with authority in the workplace:

• directly or indirectly asks the employee for sex or some form of sexual activity, either promising preferential treatment in the job or threatening worse treatment or dismissal, or
• directly or indirectly subjects the employee to unwelcome or offensive behaviour through words, visual material or physical behaviour of a sexual nature, and this behaviour is of such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

 A personal grievance can be taken even if the promises or threats were suggested rather than stated openly. Similarly, the employee does not have to say that certain behaviour is unwelcome or offensive when it happens in order to be able to pursue a grievance.

Racial harassment by a person in authority

An employee may have a grievance of racial harassment against his or her employer if the employer or supervisor or a person with authority in the workplace:

• directly or indirectly shows hostility, ridicule or contempt based on the employee's race, colour or ethnic or national origins through language, visual material or physical behaviour that the employee finds hurtful or offensive; and
• this behaviour is of a such a nature, or is repeated so often, that it has a negative effect on the employee's employment, job performance or job satisfaction.

The employee does not have to say that the behaviour is hurtful or offensive when it happens in order to be able to pursue a grievance.

Sexual or racial harassment by co-workers or customers

An employee who is sexually or racially harassed in any of the above ways by any co-worker, or by a customer or client, may complain to the employer.

The employer must then look into the facts. If reasonably satisfied that the complaint is genuine, the employer must take whatever steps he or she can to stop the harassment happening again. This may, for example, involve restricting the access of the customer or client to certain parts of the workplace.

If the harassment happens again after the employee complains and the employer still has not taken all practicable steps to prevent the harassment, the employee will have a grievance against the employer.

Duress over membership of unions or employee organisations

In some situations, employees could be subjected to duress by their employer because of their membership or non-membership of a union or an employees' organisation.

Duress can occur when an employer or an employer's representative:

• says that an employee must belong (or must not belong) to a union or an employees' organisation (e.g. a staff association) if they wish to keep their job, or
• uses undue influence, offers or does not offer some incentive or advantage, or threatens to disadvantage the employee, in order to get an employee to leave or join a union or an employees' organisation or a proposed one, or
• uses undue influence, offers some incentive or advantage or threatens to disadvantage an employee to try and stop the employee from acting on behalf of other employees.

Source:  http://www.ers.dol.govt.nz

© Crown copyright [2005]

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