Timeframes to raise grievances

In Saptu v Bartle Group Limited [2024] NZERA 244, the Employment Relations Authority ('the Authority') determined a case where an employee, previously employed as a tow truck and vehicle recovery operator from July 2020 to June 2022 attempted to raise a personal grievance claim against his former employer outside of time.

In summary, the former employee alleged that the employer inadequately addressed bullying behaviour by another employee and that the company's director mistreated him. This case illustrates the difficulties employees sometimes encounter when raising personal grievance claims in terms of the strict time frames and corresponding obligations for raising personal grievance claims under the Employment Relations Act 2000 ('the Act').

Under the Act personal grievances can be raised for various reasons such as unjustified dismissal, unlawful discrimination, sexual harassment, or unjustified disadvantage. In this particular case, the employee claimed that unjustifiable actions by his employer had adversely affected his employment conditions.

A crucial requirement for raising a personal grievance is complying with the statutory 90-day time frame for raising claims, which is specified in Section 114(1) of the Act. This section requires that an employee must raise a personal grievance within 90 days from the date the alleged action occurred or came to the employee's notice. This time limit is important because it informs the Authority's jurisdiction to investigate and resolve the grievance - if a claim is raised outside of time, then an employer may be able to successfully defend a claim on that basis alone.

The Authority's investigation revealed that the employee did not raise his grievances within the required 90-day timeframe. The investigation was conducted "on the papers", relying on written evidence and submissions rather than an oral hearing. The Authority reviewed several documents, including the employee's Statement of the Problem, the employer's Statement in Reply, and an affidavit from the employee.

The Authority's determination focused on whether the employee met the jurisdictional requirements to pursue his personal grievance. It considered the relevant provisions of the Act, the employee's employment agreement, and the principles for raising a personal grievance. After analysing the evidence and applying the key legal principles, the Authority concluded that the employee was out of time to pursue his claim of unjustified disadvantage. The decision noted the absence of any evidence that the grievance had been raised within the required time frame, which precluded the Authority from investigating or determining the matter due to it being outside of time.

Furthermore, the Authority found no exceptional circumstances that would warrant granting the employee leave to pursue his grievance beyond the statutory time limit. Consequently, the Authority determined it lacked jurisdiction to investigate the employee's application and dismissed his case.

This case highlights the importance of the statutory time frames & rules for raising personal grievance claims, including the possibility of an employer successfully defending such claims in the event they are raised outside of time. Employers who receive personal grievance claims should always check the 90-day rule carefully to ensure that claim(s) are not being raised outside of time.

A further point to note is that since June 2023 the time-frame for a grievance based on sexual harassment has been extended to 12 months, but other types of grievances remain at 90 days, which should also be specifically stated in your employment agreements with employees.