57. Resolution of Employment Relationship Problems

This clause sets out how employment relationship problems are to be resolved.

57.1  Definitions

(a)  An “employment relationship problem” includes:

  • a personal grievance
  • a dispute
  • any other problem relating to or arising out of the employment relationship but does not include any problem with the determination of new terms and conditions of employment.

(b)  A “personal grievance” means a claim that an employee:

  • has been unjustifiably dismissed; or
  • has had their employment, or their conditions of employment, affected to their disadvantage by some unjustifiable action by the employer; or
  • has been discriminated against; or
  • has been sexually harassed in their employment; or
  • has been racially harassed in their employment; or
  • has been subjected to duress in relation to membership or non-membership of a union.

(c)  A “dispute” is a disagreement over the interpretation, application or operation of an employment agreement.

57.2  Notice Period

If an employee wishes to raise a personal grievance they must raise the grievance with their employer within 90 days of the date of the action alleged to amount to a personal grievance occurring or coming to the notice of the employee whichever is the later.

If the personal grievance is that an employee has been sexually harassed in the employee’s employment, the grievance must be raised within 12 months (instead of 90 days).

57.3  Raising Employment Relationship Problems

(a)  Any employment relationship problem, should in the first instance be raised by the employer with the employee or the employee with the employer as soon as possible.

(b)  The employee and/or the employer are entitled to seek advice and assistance from their chosen representative in raising and/or discussing the problem.

(c)  If the employee wishes to raise the employment relationship problem with the employer in writing or the matter is not resolved when the employee raises the problem with the employer, the employee should submit to the employer written notice of the personal grievance, dispute or problem, covering the following points:

  • details of their grievance, dispute or problem;
  • why he/she feels aggrieved; and
  • what solution he/she seeks to resolve the grievance, dispute or problem.

(d)  The employee and the employer shall meet to discuss and attempt in good faith, to resolve the employment relationship problem.

57.4  Mediation

(a)  Where the employment relationship problem is not resolved by the parties in discussions, the employer or the employee may, without undue delay, seek the assistance of the mediation service division of the Ministry of Business, Innovation and Employment. The parties may agree to use an alternative mediation service.

(b)  Both parties must co-operate in good faith with the mediation service in a further effort to resolve the problem.

(c)  The employee and employer acknowledge that the service provided by the mediation service is confidential and if it does not resolve the problem is without prejudice to the parties’ positions.

(d)  Any settlement of the problem agreed to by the parties and signed by the mediator will be final and binding.

57.5  Employment Relations Authority

If the problem is not resolved by mediation, either party may refer the problem to the Employment Relations Authority for investigation and determination.

57.6  Employment Court

If either party is dissatisfied with the determination of the Employment Relations Authority it may appeal the Employment Relations Authority’s determination to the Employment Court.

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