Category: Workplace Law

 Employment Relations Amendment Bill

The Employment Relations Amendment Bill has now received Royal Assent, and the amendments are now law, introducing significant changes to the Employment Relations Act 2000.

These reforms signal a notable shift in how employment relationships may be regulated in Aotearoa New Zealand, particularly in relation to contractor status and the role of the Employment Relations Authority.

Changes to Contractor and Employee Classification

A central feature of the amendments is the introduction of a statutory “gateway test” for contractors.  The purpose of this reform is to provide clearer legislative criteria for determining when a worker will be treated as an independent contractor rather than an employee under the Act.

Current Position

Under the previous law, employment status is assessed by examining the “real nature of the relationship”.  The courts and the Employment Relations Authority consider a range of factors, including:

• the level of control exercised by the engager
  • whether the worker is integrated into the business
  • who bears financial risk
  • whether the worker provides their own tools or equipment
  • the practical day-to-day reality of the working relationship

This is a fact-specific inquiry, and contractual labels alone are not determinative.

New Statutory Gateway Test

Under the amendments, if the statutory gateway test is satisfied:

• the worker will be excluded from the statutory definition of “employee”
  • the worker will not be able to challenge their status through the Employment Relations Authority or the Employment Court
  • employment-specific rights and remedies under the Act, including personal grievance rights, will not apply

This represents a shift away from the open-ended “real nature of the relationship” analysis toward a more structured legislative framework.  The emphasis moves toward whether the contractual arrangement satisfies the statutory criteria, rather than whether the practical reality resembles employment.

For businesses that engage independent contractors, the new test is intended to provide increased certainty where agreements are clearly drafted and compliant with the legislative requirements.

Changes to the Role of the Employment Relations Authority

The amendments also affect the functions of the Employment Relations Authority in employment status disputes.

Previously, the Authority had broad powers to look beyond contractual wording and assess how a working relationship operates in practice.  This allows it to determine whether a worker has been incorrectly labelled as a contractor.

Under the new framework:

• the Authority will be required to apply the statutory gateway criteria when determining employment status
  • where the gateway test is satisfied, the Authority’s ability to conduct a full “real nature of the relationship” analysis will be limited
  • disputes will focus more on compliance with the statutory framework rather than broader factual assessments of workplace dynamics

These changes may alter how employment status disputes are argued and resolved and may reduce the scope for retrospective reclassification of contractors as employees where the statutory criteria are met.

Broader Implications

The Government has indicated that the reforms are designed to provide greater clarity and predictability for businesses engaging contractors, while reducing litigation over employment status.

By introducing a statutory gateway, parties may be able to rely more confidently on clearly documented contractual arrangements.

From a workplace perspective, the amendments may affect how individuals assess contractor arrangements. Where the statutory criteria are satisfied, some workers may have reduced access to employment protections that would otherwise apply to employees.

What Employers Should Be Aware of Now

Practical steps employers may wish to consider include:

• reviewing contractor agreements to ensure they accurately reflect the intended relationship
  • assessing whether current arrangements are likely to satisfy the new statutory gateway criteria
  • seeking advice before restructuring existing contractor arrangements

Employment Law Assistance

If you have any questions about contractor arrangements, employment status, or how the recent amendments to the Employment Relations Act 2000 may impact your business or workplace, our Employment Law team is here to help.

We can also support you with reviewing and updating your agreements to ensure they align with the changes to the Act.

Please get in touch to discuss your situation.

The winter months always seem to take their toll around the workplace with bugs lingering long into spring.  While you can’t always control when the sickness hit, as both employees and employers, there are things we can do to minimise the impact of sickness in the workplace.

What does the law say?

By default, employees are entitled to ten days of sick leave each year.  This can be added to by specific employment agreements, so it pays to always check if an issue arises.  Employees are entitled to take sick leave any time they are unwell, provided they have leave accrued.

There is no statutory or legal entitlement to work remotely or “work from home”.  Where this is permitted, it will be governed by employment agreements and workplace policies.

Are you sick or not?

With the increase of remote working arrangements or working from home, the line is sometimes blurred between sick leave and remote working.  If an employee is sick, then they should stay home and take sick leave.

This does not mean that they are “working from home”.  There is no obligation for employees to work while they are sick.  In fact, ensuring that employees have time to properly rest and recover is often better in the long run for getting them back to the workplace.

Coming into work when sick presents a health and safety risk to other employees so those who turn up sick might expect conversations about heading home to avoid others getting sick.  In some circumstances this might mean working from home if an employee is well enough but still contagious perhaps.  If these discussions are had with care and with all individuals in mind, they are likely to be well received.

In terms of being sick, it is important to remember that any time an employee is not well enough to work, they are able to sick leave.  This can include sick leave for mental health, if the impact of it is adversely affecting ability to work.

When is a medical certificate needed?

Generally, employment agreements or workplace policies will set out when a medical certificate is required, often where an employee is sick for three days or longer.  In workplaces where there is a high level of trust, medical certificates are not needed on every occasion, but if there is a prolonged illness or something that is going to have a lingering/flow-on effect, medical certificates are helpful to ensure that everyone is on the same page.

In the absence of a medical certificate, understanding what exactly is going on and how long an employee thinks they may be out of action for is quite important.  For an employee, this shows good faith in assisting their employer to manage their absence and workload.  That communication can also mean that there is less stress for the employee resulting from their absence from work.

There is no need for an employee to provide every detail of an illness, but of course the more information that is provided, the better the employer can plan around a situation and support an employee.  Particularly in instances of extended sick leave, employees should expect their employers to ask for more detail of the illness or injury and what that means in terms of their role.

Requesting sick leave

The rules for requesting sick leave are generally contained in workplace policies, or employment agreements.  Although employees are entitled to take sick leave when they are unwell, it should always be communicated to the relevant supervisor or manager before being publicly communicated to the wider staff or to clients/customers.  Communications should be made at the earliest opportunity and in advance of any upcoming shift or working hours commencing.

In our experience, where the focus is on hauora and where communication is strong, sick leave will be well managed for the benefit of both employees and employers.

Proposed changes to the Employment Relations Act 2000 (ERA) would limit personal grievance rights for employees earning over $180,000—unless their employment agreement says otherwise.  This article explains the current law, what is proposed, and what it means for those affected.

Current Law

Under the ERA, all employees — regardless of salary — can raise a personal grievance if they consider they have been unjustifiably dismissed or disadvantaged.  An employee may claim they have been unjustifiably dismissed if their employer terminated employment without reasonable basis and/or without following a fair process.  Unjustified disadvantage in employment is a wide-ranging claim capturing any action or omission by the employer that unjustifiably disadvantages the employee in their employment.

Remedies currently available to employees include reinstatement, reimbursement of lost wages, compensation for hurt and humiliation, and costs.

Proposed Reform

The proposed reform — currently before Parliament — would limit access to personal grievance rights for unjustified dismissal and/or unjustified disadvantage where an employee earns over $180,000 gross per annum (adjusted annually for inflation).

Employees earning above the income threshold would not be entitled to raise a personal grievance for unjustified dismissal and/or unjustified disadvantage, unless:

• Their employment agreement expressly provides for it; or
• The grievance relates to any protected grounds – discrimination, sexual harassment, or union related duress.

Employers and high earners could agree to preserve grievance rights, but this would need to be clearly documented in the employment agreement.

High earners would still retain the right to pursue claims under the Human Rights Act 1993, Privacy Act 2020, or for breach of contract.

Reform Rationale

The Government explains the rationale behind the reform is that:

• High income earners are better resourced to negotiate contractual protections – they typically hold more bargaining power and access to legal advice.
• Statutory protections may be less necessary where tailored, negotiated agreements are in place.

The goal is to reduce strain on the Courts and encourage high earners to rely on negotiated contract terms instead of default statutory protections.

Implications for Employees

Employees over the income threshold will need to take care when negotiating the terms of their employment agreements.  Employees should check that their employment agreement provides the right to raise a personal grievance for unjustified dismissal and unjustified disadvantage.  If it does not, the employee may have no recourse if, for example, they are treated unfairly or their employment is terminated unfairly.

While negotiating power may be strong for employees entering a new employment relationship, those in existing relationships will not hold the same leverage.  There would be a 12 month transition period for existing employees and employers to negotiate terms.

Implications for Employers

Employers can expect a reduction in personal grievances (relating to dismissal and disadvantage) from high income employees.  High income employees may start pushing for built in protection and be more focused on negotiating robust agreements at the outset of employment.  Employees may look to protect themselves with enhanced notice periods, severance payments and waivers of restraints of trade.

Going Forward

The Employment Relations (Termination of Employment by Agreement) Amendment Bill is still in the Select Committee stage, with the Committee report expected by 8 October 2025.  Accordingly, change is not imminent – the earliest we could expect the Bill to pass is late 2025.

Whether the Bill is passed or not, we recommend reaching out to our team to discuss your employment agreements and whether specific clauses should be added or removed to best suit your situation.

Employment Law Assistance

Our Workplace Law Team are able to assist with all employment processes and any other bespoke employment queries that you may have.

Chantelle is an Associate in our Workplace Law Team and can be contacted on 07 958 7473.

Keeping a healthy and productive employment relationship between an employer and employee is an important part of working together for the betterment and benefit of the overall business.  It goes without saying that issues and problems can crop up from time to time, whether intentional or unintentional, the best way to prevent employment relationship problems is to stop issues before they start.

Employment agreements must contain a simple, plan language explanation of how to resolve employment relationship problems and often referred to as dispute resolution.  It should be written clearly so that everyone knows what steps they need to follow if they think or if there is a problem.

Recognising an issue early

An employment issue includes anything that harms or that may harm the employment relationship. There can be many employment relationships, for example between:

• Employer and employee
• Employees
• Manager and employee.

It is important to think through the problem and gather all relevant information.  It is worth spending some time at this stage trying to identify the underlying cause in order to see how the problem might be resolved.  Generally, this would involve collecting the information is the first step in resolving an issue.  It is about being honest as missing out important facts or changing the facts can make the problem worse.

Before taking it up with an employer or employee, it might be a good idea to talk through a problem with another manager or HR department to clarify whether a problem exists and what the issues might be; the cause of a problem might not be obvious.  Always take care to respect the privacy of other and protect confidential information.

Some simple practices that can help make relationships smoother and prevent problems as an employee:

• Take time to communicate clearly. Poor communication can often cause disputes and misunderstandings.
• Raise concerns when they first appear can assist resolving them from becoming larger and/or harder to resolve.
• Making sure you know and understand workplace policies and procedures.
• Being prepared to engage in regular performance check-ins and stay updated on changes in the workplace.
• Use the proper channels to report concerns like bullying, discrimination, or harassment.
• Taking responsibility can help prevent and resolve misunderstandings, confusion or mistakes such as speaking up if you think there’s an error, like an overpayment.

On the other side, here are some simple practices that can help employers build smoother relationships and prevent problems:

• Encourage employees to raise issues right away to avoid escalation.
• Ensure workplace rules and procedures are easy to understand and well communicated, especially policies around resolving problems/concerns.
• Implementing clear systems for setting performance expectations, holding regular check-ins, keeping staff informed, and managing changes or performance issues.
• Having clear processes for addressing issues like bullying, discrimination, or harassment.
• Foster shared responsibility and encourage a culture where everyone helps prevent and resolve mistakes, such as reporting errors like overpayment.
• As long as you follow workplace policies, you can remain flexible and explore different ways to address concerns when considered separately, helping to resolve issues while acting in good faith.

Alternative resolution pathways

Both parties should first attempt to resolve issues between themselves to prevent escalation and maintain a positive working relationship.  If this informal approach does not work, mediation may be considered.  With both parties’ agreement, an independent mediator could help facilitate discussions, identify issues, and propose mutually beneficial solutions.  This service is free and provide by the Ministry of Business, Innovation, and Employment.

If you are needing advice about what dispute resolution process and/or policies you currently have in place or have current issues that you wish to resolve in a proper and fair way, McCaw Lewis has an experienced workplace team who can assist you.

Cree Ratapu is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 808 6069.

Social media has become a big part of most people’s daily routine, and as a result, many aspects of our lives can be found easily online.  When it comes to differentiating between our personal and professional lives, the line is sometimes hard to find.

And in an employment situation, questions can arise over what an employee does in their personal life and how that can be dealt with in the workplace.  Is there anything that an employer can do about an employee’s personal social media posts?

Employee behaviour outside the workplace

Generally, an employee can be disciplined or even dismissed for misconduct that occurs outside of the workplace.

This is not a free for all and there does need to be some link between the employee’s conduct and their employment.  For example, this can be the case where an individual is well known in a professional setting and does something that has the potential to bring their employer into disrepute by association.

So, what’s the deal with social media activity of employees?

It goes without saying that anyone using a work profile or operating a company account has to “play by the rules” around social media.  Equally, if an employee is expressly posting about work topics, in work uniform or on work premises, the employee will be open to disciplinary action if the posts are inappropriate or in breach of employer rules.

But when using a personal social media account – what then?

In short, this needs to be dealt with on a case by case basis, considering all the circumstances.  Key considerations that need to be weighed up when addressing social media posts by employees include:

• Are the social media posts clearly made by an employee? It is not sufficient for an employee to use an alternative name or image effect if it can still be traced back to them, and in turn the employer.
• What does the social media post say? This will mean looking at the specific wording but also considering whether there are other clear inferences that can be taken from the strict wording in the circumstances, given the topic or other surrounding comments.
• Who is able to see the post? Even comments made on private accounts to an employee’s friends may still be misconduct.
• Check the relevant policies. There will often be employer policies which deal with social media specifically, and these do need to be followed.  There might also be general code of conduct provisions relevant to the situation.
• Are there any other industry requirements or obligations that might apply? For example, there may be specific privacy rules at play or industry requirements around confidentiality.
• How might the content of the posts, or the action itself, fit with the employer’s values? At times, the content of posts, or even the fact of making any comment on a particular topic, will be at odds with the values or core functions of the employer.  This may be the case where an employer is performing a public function or providing services of a nature that require certain public confidence.
• Do the posts have the potential to bring the employer into disrepute? Employees should recognise that social media posts can reach people right across the world, regardless of how and where they are posted.  They can be received in many ways as well.  Whether a post has the potential to bring an employer into disrepute will depend on the wider context.
• Are the posts of a nature or content that destroys the employer’s relationship of trust and confidence with the employee?

While there is protection for free speech at an individual level, this does not enable or entitle employees to take steps or make statements that have the potential to adversely affect their employer.  When entering into an employment relationship, both parties have obligations of good faith to each other to ensure a productive working relationship.  Rude or inappropriate social media posts do not fit into that category.

For both employers and employees, it is important to understand employer policies and key values or expectations of employees.

• For employees, always err on the side of caution. If it is that important for you to post something online, you can always read the policies and check with your employer first.
• For employers looking to avoid this situation, ensure that your policies are up to date and well communicated to your team. If faced with this situation, the best approach is always to discuss matters with your employee before taking any further action.

Remember that posts on social media can last forever, regardless of whether they are deleted and who you share them with.  Care and caution should always be exercised.

For further information or advice on matters, or to update your social media policies, contact Executive Director, Renika Siciliano, or any of our Workplace Law Team at McCaw Lewis.

This case involved an employment dispute where MW, an employee of Spiga Limited, sought non-publication (name suppression) orders after the company breached a Settlement Agreement (Agreement) and disclosed MW’s name publicly in breach of the confidentiality provisions.

The Employment Relations Authority (ERA) initially declined to grant non-publication of MW’s name, leading MW to challenge this decision in the Employment Court.  The Court eventually granted the non-publication order.  The Court’s comments here were of particular significance given the number of parties that became involved in this test case for non-publication orders in employment law.

The Court used this decision to ultimately set out guidelines for considering non-publication orders, including a number of factors such as privacy, tikanga, and the potential impact of publication on social media.  The case was heard by a full bench of the Employment Court and there were two judgments made.  We summarise key aspects drawn from both judgments below.

Majority Decision

The Employment Court reviewed the approach to non-publication orders, emphasising the balance between open justice and privacy interests.  The majority decision adopted the conventional approach and granted a permanent non-publication order for MW’s name and name suppression.

The majority decision was made by Judges Corkill, Holden and King.  In adopting the “conventional approach” here, they focused on the Erceg test and the principles of open justice.

The Erceg test is derived from the Supreme Court case of Erceg v Erceg [2016] NZSC 135, which provides a legal framework or “test” around determining whether a non-publication order should be granted in the civil context.  The test requires an applicant to show that there are sound reasons for a non-publication order, and that these reasons outweigh the presumption of open justice.

The principle of open justice is fundamental in New Zealand’s legal system.  It says that Court proceedings are to be open to the public for transparency and accountability.  There are, however, situations where this is overridden to protect the interests or the privacy of people involved.  Traditionally, this only happens in exceptional circumstances.

Many arguments were put forward specifically focussing on the employment context and the nuances of that space, those arguments included:

• the focus on relationships between parties in an employment context;
• the need to preserve confidentiality where there are settlements reached at mediation; and
• the potential for any Authority or Court decision to adversely affect an individual seeking employment, given that decisions are all publicly available online.

The role of tikanga in this space was also considered quite generally.  The majority acknowledged previous case law and confirmed again, that tikanga is relevant to both the Authority and Court’s approach to non-publication (and employment law generally).  They stated however, that caution must be applied when engaging tikanga and its principles – the Courts are not the makers of tikanga.  Tikanga was described as contextual, and that it should be applied on a case-by-case basis.  They noted that the way in which tikanga is said to apply, whether it will be relevant to the employment relationship, and how much weight will be accorded, will depend on the context.  It was also recognised that the Court and Authority must engage with tikanga through care and manaakitanga, in a way that upholds its mana and integrity.

Minority Decision

Chief Judge Inglis issued a separate decision which reached the same ultimate conclusion, but through a different approach.  Judge Inglis’ approach was that the provisions of the Employment Relations Act and the statutory regime came first, rather than the Erceg test or open justice principles.

Through this lens, she drew on many considerations, with a number relating to and recognising tikanga.  In her view, tikanga can inform the Court’s approach at a general (framework) level and at a case-specific level as it can be “a means or a mechanism to further the objectives of an employment relationship and of the wider jurisdiction”.

In this context, the more holistic and purposive approach is required to account for the relational and specialist nature of this jurisdiction, which tikanga will account for.   Judge Inglis considers that this points squarely away from open justice being given pre-eminent status.

Points of Note

While the minority decision is not binding on future Courts, it does provide some food for thought in terms of how the Authority or Court might look at similar arguments and opens the door for a more bespoke approach in the specialist employment jurisdiction.

At a general level, the Court’s decision here suggests that – even using the conventional approach from the Civil courts – there may be some softening of the test for non-publication in the employment context.

Employers must take allegations of workplace bullying seriously, and they need to be investigated promptly and thoroughly.  However, it is important that employers know what constitutes “workplace bullying” and what does not.

How do we define “Workplace Bullying”?

WorkSafe NZ defines workplace bullying as: “repeated and unreasonable behaviour directed towards a worker or a group that can lead to physical or psychological harm”.

Under this definition, bullying is a repeated and unreasonable behaviour, and behaviour may be constituted of physical, verbal, or social behaviours.

The Health and Safety at Work Act 2015 (The Act) requires that employers prevent or mitigating any accidents or incidents in the workplace that may cause injury or harm to employees.  This includes managing any health and safety risk presented by workplace bullying to an employee’s mental health and wellbeing.  Allegations of bullying, when substantiated, are also grounds for personal grievance which can bring risk and expense to the employer.

If you are faced with this situation, check workplace policies and individual employment agreements to see whether specific behaviours are described as workplace bullying there.  Broadly, workplace bullying can include repeated instances of the following:

• Verbal Abuse: Insults, shouting, or offensive language directed at an individual.
• Exclusion: Deliberate exclusion from activities or information.
• Intimidation: Threats of harm or adverse consequences.
• Undermining Work: Deliberately setting unrealistic deadlines or unachievable tasks.
• Unwarranted Criticism: Excessive or unjustified criticism of work performance.
• Physical Abuse: Any form of physical intimidation or harm.

Harassment is differentiated from bullying, as it may be inferred from a single event and tends to be directed towards a specific characteristic of the victim, including religion, ethnicity, or disability.

What doesn’t constitute “Workplace Bullying”?

When things go bad and emotions are heightened, a lot of actions or behaviours can look or feel like bullying to employees on the receiving end.  Those actions do not always amount to bullying and it is important to identify where they fit.  Examples of what doesn’t amount to bullying on its own include:

• Reasonable Management Action: Actions taken by management to address performance or conduct are not bullying if they are reasonable and conducted in a fair manner.
• Single Incidents: One-off incidents or occasional disagreements between employees, while not acceptable, may not constitute bullying unless they become part of a pattern of behaviour.
• Workplace Conflict: Genuine workplace conflict where parties have differing views or disagreements is not bullying unless it involves persistent intimidation or unfair targeting of individuals.
• Personality Clashes: Differences in personalities or work styles that do not involve targeted harassment or harm.

Next Steps

Understanding the distinction between workplace bullying and other workplace conflicts or issues is crucial for creating a healthy and productive work environment.  Our Workplace Law Team can assist, in drafting a workplace bullying policy, providing tailored advice and assistance if a complaint has been received, or if you are the employee looking to make a complaint alleging workplace bullying.

Chantelle is an Associate in our Workplace Law Team.  Chantelle can be contacted on 021 675 858.

Employers and employees alike may experience mental illness at any stage in their lives.  Given the length of our working lives – the likelihood of it happening during our working life is high.  With that in mind, it is important to foster workplaces where talking about mental health is a safe and natural thing to do.

In this article, Tazmyn offers tips to equip employers to support their employees in the workplace and understand their obligations if an employee is experiencing mental health challenges.

What does the law say?

Firstly, an employer has an obligation to take all reasonably practicable steps to prevent harm in the workplace.  If all reasonably practicable steps are not taken, and an employee suffers harm, they may have grounds to bring a personal grievance under the Employment Relations Act 2000 (the ERA).

Under the Health and Safety at Work Act 2015 (the Act), employers are referred to as a PCBU (“person conducting a business or undertaking”).  A PCBU has a paramount obligation to ensure the health and safety of their employees.  The “health” in health and safety includes mental health.

Looking at case law, FGH v RST [2018] NZEmpC 60 provides some key points around an employer’s obligations regarding an employee with mental illness, specifically in cases where performance is in question.  Where an employee discloses a mental health matter, an employer should first understand the matter prior to entering any form of disciplinary process.  In that case, it was not enough that the employer had offered extra support to the employee – the employer had a positive obligation to seek further information.  The employee stayed employed, and in 2021 raised further personal grievances after a disciplinary process.  The Employment Court ruled in favour of the employer this time as they had engaged a psychiatrist to assess whether the employee was fit to work and able to participate in a disciplinary process.  The learning from the second proceeding is that if independent advice declares an employee fit and able to participate in a formal disciplinary process, and there are no other perceived risks to be addressed, an employer can proceed with caution.

What can employers do?

A mental health/wellbeing/Hauora policy is an essential part of ensuring that employers are upholding their obligations and most importantly, looking after the people of their business.  Policies should set out what type of support is available, including guidance for employees around how to navigate or approach things or who to go to for a confidential kōrero.

When it comes to mental health, Hauora, and wellbeing, unfortunately no one (including employers) have all the answers – as much as we might wish we did.  What we do know is that creating a healthy, safe, and supportive environment is fundamental.  He aha te mea nui o te ao?  He tāngata, he tāngata, he tāngata.  What is the most important thing in the world?  It is people, it is people, it is people.  A Māori proverb and reminder that it is people who are at the centre of what we do – let your workplace be one that is equipped to support its people when times get tough.

Our workplace team at McCaw Lewis are available to discuss and assist with reviewing/drafting mental health and Hauora policies for your workplace.  The team are also available to assist you in any employment process where an employee is affected by mental health where support and a cautious approach is required.

Tazmyn is a Solicitor in our Workplace Team and can be contacted on 07 958 7467.

A personal grievance is one of the main ways for employees to make a complaint against their employer if they believe their employer has acted unfairly or unreasonably towards them.  Grounds for personal grievance cover a number of actions including, but not limited to:

• an employer failing to follow a fair and reasonable process in respect of action taken against an employee, such as changing the employment terms and conditions, or making their role redundant;
• an unjustified dismissal, where an employee feels there was no reason for their dismissal, or that the process followed by their employer was not fair or reasonable;
• a constructive dismissal, where an employee felt they had no option but to resign as a result of the employer’s actions; or
• an unjustifiable action that disadvantages the employee. This ground encompasses a range of actions that are not reasonable or taken in good faith, the key factor being that the action causes disadvantage to the employee by affecting their working conditions or employment.

To raise a personal grievance, you do not need to explicitly state to your employer that you are raising a personal grievance.  You just need to clearly tell your employer what the problem is.  Detail what they did or did not do to cause the grievance (for example, what was done incorrectly), what impacts has it had on you and what you would like them to do to remedy your grievance.

Generally, this is best done in a letter to keep a paper-trail in case issues arise further down the track.  It would also be helpful to check if your employment agreement provides for a personal grievance process so you can follow that.

Time limitations

If you wish to raise a personal grievance, you must raise it within 90 days of the employer’s action that caused the grievance or when the action first came to your attention e.g. if your employer told you they were dismissing you.  If you are raising a personal grievance regarding sexual harassment, you have up to 12 months from when the harassment occurred or when you noticed it occurring.

If it has been more than 90 days, you may still be able to raise a personal grievance if your employer agrees.  It is not often that we see employers agreeing, so it is key to stick to the time limitations if possible.  If your employer doesn’t agree, you can apply to the Employment Relations Authority (ERA), to be allowed to raise a personal grievance after the 90-day period.  However, there is a high threshold you will need to meet as granting a personal grievance past the time limitations can only be done in exceptional circumstances as outlined in section 115 of the Employment Relations Act 2000.

Options/Alternatives

In the first instance, employees should first talk to their employer to resolve problems.  Trying to resolve the problem informally can sometimes help keep the employment relationship positive.  This is important if you wish to continue working at your job and want to work through the problems collaboratively with your employer.

Mediation is another alternative to consider if matters cannot be resolved informally.  This entails an independent mediator stepping in (if both parties agree) to assist in resolution by encouraging discussions, outlining the overlying and underlying issues, and providing possible solutions that work for both parties.  This is a free service provided by the Ministry of Business, Innovation and Employment.

Alternatively, you could raise a personal grievance with the ERA directly.  It is highly likely the ERA will refer you to mediation in the first instance if you have not tried it already.  You have three years to begin proceedings in the ERA after your personal grievance was first raised with your employer.

A tip for employers.  If an employee has raised with you a personal grievance, it is important for you to take their grievance seriously and to follow a fair and proper process in resolving their grievance in a constructive and timely way.  It is important to listen to your employee’s grievance, to keep an open mind and avoid predetermination of anything before you have all the facts and information.

If you are needing advice around raising a personal grievance, whether you have grounds to raise one or even looking for alternatives to resolve matters before it escalates to that point, McCaw Lewis has an excellent workplace team who can assist you.

Cree Ratapu is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 808 6069.

During an employment or disciplinary process, we occasionally see employees tendering their resignation.  The first instinct of a busy employer is to rush to accept this resignation, assuming this means the matter is resolved.  However, this can create risk for the employer and we recommend that employers seek legal advice before rushing to accept.

In this article, we look into the risks associated with accepting the resignation at face value and how to mitigate these risks.

The Warning Signs

When an employee tenders their resignation amidst a disciplinary or other employment process, it is important to consider the resignation in context.

Of course, it is not always the case, however there could be alarm bells ringing that the employee is gearing up to raise a personal grievance on the grounds of constructive dismissal.

The content of the resignation letter gives the best indicator as to the employee’s intention.  To meet the grounds of constructive dismissal, an employee could argue any or all of the below:

• They had no option but to resign
• They are resigning as a result of the employer’s actions or pressure
• They consider the employer will decide to terminate their employment anyway, so the employee is getting in there first
• The work environment was bad, or they will refer to recent events and/or a diminution in the employee/employer relationship. A common phrase we see is – “it is in everyone’s best interest for me to leave”

If you receive a letter with the warning signs, ensure you do not agree with the contents and do not accept it immediately.  Ensure you encourage the employee to think about their decision further, and advise that you are available to discuss any concerns of points they have raised.  If the employee still feels the same way later, then you can look into next steps.

What Next?

It is still possible to accept the resignation.

Ensure you act in good faith and address the employee’s concerns and engage with them about it.  This could be penning an acceptance letter that acknowledges the employee’s concerns, but does not agree with them.  This looks like the following:

• Acknowledge the employee’s decision to resign
• Respectfully disagree with claims they make (e.g. you have pressured me) and explain why
• Recap any discussions held with them that are relevant and dispel their claims
• Express gratitude for their hard work and wish them well

The key is ensuring that any other options are clearly open to them for consideration, before resignation is confirmed.

If the employee has tendered their resignation in the middle of a disciplinary process, it is possible to advise that you will not be accepting the resignation as there is a disciplinary process afoot.  As these matters fall heavily on the facts, we recommend reaching out to a lawyer to discuss options to fit your bespoke situation and reduce your risk.

Employment law assistance

Our Workplace Law Team is able to assist with all employment questions/pātai that you may have.

Chantelle is a Senior Solicitor in our Workplace Law Team and can be contacted on 07 958 7473.