Posted on: Feb 01, 2013
In accordance with section 114 of the Employment Relations Act, every employee who wishes to raise a personal grievance must raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.
As this is not always clear, we are often asked the question of “when does the 90-days commence?”
According to the case of Gibson v GFW Agri-Products Ltd [1994] 2 ERNZ 309, a dismissal occurs when employment terminates. Time runs from the termination of employment, not from when notice is given.
This interpretation is further supported in the case of Robertson v IHC New Zealand Inc (1999) 5 NZELC, where the Employment Court held that the correct interpretation of the “90-day rule” is as follows:
- In the case of a summary dismissal, the 90-day period commences on the date when the affected employee is effectively dismissed.
- If the dismissal is on notice or payment in lieu of notice, the 90-day period commences upon the expiration of the notice, unless the employer and the employee agree otherwise.
- In certain circumstances, the 90-day period will run from a date later than the actual date of the termination of employment in favour of a particular employee or former employee. This will arise when the affected employee reasonably concludes that he or she was unjustifiably dismissed because of the further information derived about the basis of the dismissal.
In Wyatt v Simpson Grierson (A Partnership) EC AC45/07, 20 July 2007, the Employment Court considered the meaning of “came to the notice of the employee” in the context of the Employment Relations Act and the Employment Contracts Act 1991. The Court said (para 40) that the beginning of the 90-day period is the first time at which the employee can reasonably be expected to take steps to have his or her personal grievance considered and that is the time at which the cause of action embodied in a personal grievance accrues.
Bryan v Amcor Packaging (New Zealand) Ltd ET WT15/02, 25 February 2002 also followed Robertson, and is to the same effect. The 90-day period does not commence at the point at which an employee realises that he or she has a personal grievance; it commences once the employee is aware of the act or omission of the employer and forms a reasonable belief that the employer’s action was unjustifiable.
While every personal grievance claim needs to be assessed on a case-by-case basis, the principles set out above can be used as a guide to determine when to start counting the 90-days from. There are some exceptional circumstances that are provided for under section 115 of the Act, which allow for a personal grievance to be raised outside of the 90-day period, however these will rarely apply. If you feel you have been treated unfairly in your employment or by the termination of your employment then make sure you seek advice and raise the issue with your employer within 90 days just to be safe.
If you’re an employer and have had a personal grievance raised against you and you’re in any doubt about whether or not it was raised in time – don’t respond or make any attempt to remedy the grievance, as in doing so can be considered consent to the raising of a grievance outside of the required timeframe!
Just a reminder – personal grievances can be raised for:
- Unjustified dismissal
- Unjustified disadvantage
- Discrimination
- Sexual harassment
- Racial harassment
- Duress in relation to membership or non-membership of a union
- Denied the right to elect whether to transfer to a new employer in a restructuring situation (part 6A of the Act)
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
