Ideally, disputes can be settled by an employer and their employee discussing the issue and reaching agreement on how to resolve it.
But sometimes this is insufficient — the employee can feel they have not been fairly treated, and that their employer is failing to resolve the issue properly.
What is a personal grievance?
The Employment Relations Act 2000 (‘the Act’) enables employees to raise a personal grievance with their employer. This is the first formal step towards bringing the dispute before the Employment Relations Authority (‘ERA’).
For what reasons can a personal grievance be raised?
The Act describes the reasons for which a personal grievance can be raised. The most common reasons employees raise a personal grievance are that they consider their dismissal was unjustifiable, that the procedure followed was unfair, or if they haven’t been dismissed, that the employer has placed them at a serious disadvantage in the work-place.
Disputes over unjustifiable dismissal are usually resolved with a negotiated settlement in which the dismissed employee agrees to leave the employer in return for the payment of an exit-package. The value of the package is typically based on one-to-three months of service and can include a sum for damages for stress and humiliation.
What is the process?
An employee can raise a personal grievance within 90 days of the problem arising or the first time it came to their attention. The Act allows employees to raise a personal grievance beyond the 90 days, but only if the employer agrees, or if the ERA gives permission because of exceptional circumstances.
The personal grievance should be made in writing rather than verbally, to reduce the risk of future disagreement over the nature of the initial complaint. It should clearly describe what the grievance is and what needs to be done to address the issue. It is important that the letter, or email, describes the grievance very clearly to ensure it can fully support any future legal action that may arise.
The employer can then respond to the grievance. They may choose to address the issues raised fully, or if they consider the grievance is unjustified, not to take any action.
If the employee is not satisfied with the response they receive, they have three years in which to begin proceedings in the ERA. The ERA will usually require the employer and employee to attempt to reach a mediated agreement, but if that fails, the employee can seek to take action through the ERA, or failing that, the Employment Court.
Can conditions of employment include a grievance-free trial period?
Yes, but only if the employee hasn’t previously been employed by that employer, and the business has fewer than 20 employees. To be valid, the grievance-free trial period must:
- Be included in the written employment agreement, specifically stating that the employer can dismiss the employee during the trial period and that the employee is not entitled to respond with a personal grievance or any other legal action.
- Last for no more than 90 days after the employee commences work.
If an employee is informed of their dismissal after the end of the trial-period, or the trial-period is not valid in any respect, they are entitled to take out a personal grievance for unjustified dismissal.
It’s important to remember that they can still take out a personal grievance, on grounds other than an unjustified dismissal, such as for racial harassment, during a grievance-free trial period. Also, a grievance-free period is different from a ‘probation period’ — so long as there is no valid trial-period in place, the employee may still take out a personal grievance for unjustified dismissal during a probation period.
At Wakefields, we are employment law specialists and have extensive experience advising employers and employees on the personal grievance process. We can assist with the initial steps of drafting a personal grievance letter, or for employers, responding to them. We can initiate action through the ERA, provide advice during mediations, or assist clients further, with litigation in the ERA and Employment Court.
Contact us if you need any assistance with a personal grievance.