A personal grievance is, in essence, a claim brought against an employee’s current or former employer for unfair or unreasonable treatment.
How does the personal grievance process work?
Ideally, a personal grievance should be raised in writing so that there is a record of it. This means there can be no dispute about the fact that it has been raised. The full details of the grievance do not need to be set out in writing – it is enough that the employer is aware of its general nature.
It is important to note that the employee, or former employee, must raise their personal grievance (i.e., draw the nature of the grievance to the employer’s attention) within 90 days of the employer’s acts or omissions on which the claim is based.
If the employment contract has an enforceable 90-day trial period, it should also be noted that the employee will be unable to claim a personal grievance for dismissal if it occurs within that timeframe.
Once a personal grievance has been raised, the employee (or former employee) has three years to file a claim to the Employment Relations Authority.
What are the grounds for raising a personal grievance?
Section 103 of the Employment Relations Act 2000 (‘the act’) details the matters that can be pursued by way of a personal grievance.
The most common personal grievance raised is unjustifiable dismissal; where the former employee claims they were dismissed without proper justification or in a manner that was not procedurally fair.
A ‘constructive dismissal’ also falls under section 103 of the act. This occurs when a resignation is effectively forced upon an employee by an employer’s deliberate conduct.
Unjustifiable actions by an employer that disadvantage an employee’s employment (or any conditions of their employment) are also actionable under section 103. For example, if a benefit enjoyed under the employment were to be taken away without justification, this would be seen as an unjustifiable action.
What is considered unjustifiable dismissal?
An employee is unjustifiably dismissed if an employer dismisses them:
- Without a good reason, and/or
- Without following a fair process.
For an employer to have a ‘good reason’ for dismissing an employee, they must have believed that there was a valid reason to begin the action or process of dismissal.
Determining whether an employer (or former employer) has followed a ‘fair process’ is slightly more complicated; it will depend on whether they have met their obligations as spelt out under section 103A of the act. Those obligations have been further refined by decisions of the Employment Relations Authority, the Employment Court and the appeal courts.
In essence, section 103A states that the employer must act in a ‘fair and reasonable’ manner; they must conduct an open-minded investigation into the issue(s) of conduct or performance that are under consideration before any decision to dismiss is made.
As part of that process, the employer must give the employee all relevant information, warn them of the potentially adverse findings and consequences of the investigation, give them an opportunity to be represented at all relevant times, and perhaps most importantly, the opportunity to be heard and to put forward evidence relevant to the matter(s) under investigation.
This latter right is commonly known as ‘natural justice’ – the duty, when a person is supposed to be making a fair and objective decision, to hear the other side of the story. It is regarded as a fundamental principle of justice.
The terms of the employment agreement, if there is one, may also have some bearing on what is an appropriate fair process, although contractual provisions cannot override the requirements of section 103A.
If the employment agreement sets out the process for dismissal, those terms may have to be met in order for the employer to have followed a ‘fair process’, but only if those terms are surplus to the requirements under section 103A.
The act provides that an employee has the right to ask for a statement from their employer outlining why they have been dismissed. The employee may request this statement within 60 days of their dismissal. This may be something that is sought at the outset so that there is clarity about the reason(s) for the dismissal.
If you are an employer, there are many boxes to tick during a dismal process. For example, employees must be treated consistently for the same conduct and the employer’s overall record has to be taken into account. It is not always easy to get it right, which is why we recommend that you seek legal advice during the process, rather than afterwards (when it is often too late and the financial consequences more severe).
What is the typical outcome of a personal grievance claim?
If a personal grievance is found, the Employment Relations Authority has the power to award:
- Reinstatement to the position that the employee was dismissed from (or another no less advantageous);
- Reimbursement of lost wages and other financial losses resulting from the grievance;
- Compensation for humiliation, loss of dignity and injury to feelings, and for loss of any benefit (monetary or otherwise) which the employee might reasonably have been expected to obtain if the grievance had not arisen.
However, it is important to note that the Employment Relations Authority also has the power to determine, despite finding a personal grievance proven, the extent to which an employee contributed to their own dismissal, and to reduce any award proportionately. In a number of decisions made by the Employment Relations Authority, this has resulted in no compensation being awarded, after the employee has already incurred the cost of a hearing.
Therefore, it is important to assess any personal grievance claim holistically so that the best possible decisions can be made.
If you’d like to speak with us about a personal grievance claim or employment dispute, please get in touch with John or contact reception.
This article is brief and general in nature. You should not treat this article as legal advice and should seek professional advice before taking any action in relation to the matters dealt with in this article. Armstrong Murray accepts no liability for losses suffered by any person or organisation who may rely directly or indirectly on this article.
