A personal grievance must be raised within 90 days of the date of the action or grievance arising or later with consent of the employer. Personal grievances may be raised in respect of unjustifiable dismissal, or an unjustifiable disadvantage. An unjustifiable disadvantage relates to an alleged unjustifiable action on the part of the employer which impacts on one or more conditions of the employee’s employment.
Further areas in which grievances may be raised are contained in section 103(a) to (g).
An unjustifiable dismissal may be raised in respect of an employee who has been dismissed or one who has resigned and claimed constructive dismissal. A constructive dismissal is where the resignation of the employee is found to have come at the initiative of the employer. Some examples are where the employer may ask the employee to “resign or be fired” or where the employer has breached the employment agreement seriously and that it is foreseeable in view of those breaches that the employee will resign.
Frequently Asked Questions
There are many reasons you may need a lawyer in employment matters.
Before starting a job, you may want to have your employment contract checked by a lawyer before you sign. There may be conditions, terminology you don't understand or 'small print' that is worth double-checking before putting pen to paper.
The most common reasons to get in touch with a lawyer include:
- constructive or unjustifiable dismissal
- harassment or bullying
- unfairly made redundant
An employer must allow you to take away an employment agreement, and to seek advice on its terms prior to signing the agreement. A solicitor can provide advice on any areas of concern or any areas that require clarification.
The employment contract needs to be in writing and signed by you and your employer. The agreement needs to include:
- names of the employer and the employee
- description of work to be performed by you
- indication of where you need to perform the work
- indication of the arrangements relating to the times/hours you need to work
- the wages or salary
- redundancy clause
- a plain language explanation of the services available for the resolution of employment relationship problems
Fixed term and casual agreements both have specific contractual requirements. These contracts should also be reviewed professionally before being signed.
Independent contractors are not employees and are not covered by the Employment Relations Act. However, there can be times when it is arguable whether someone is a contractor or employee.
Under the Employment Relations Act 2000, there are two types of employment agreements: individual employment agreements and collective agreements.
Individual employment agreements are negotiated between an individual and their employer, and bind only those parties.
Collective agreements are negotiated between a registered union and an employer. A collective agreement will only be binding on employees who are members of the union and whose positions are covered by the coverage clause of the collective agreement.
If there is an involuntary termination, what will happen?
- If there is a termination, how much notice must you receive?
- What is the base pay and performance incentives?
- Is there a trial period?
- What is the job description or position description?
- If you want to do some work on the side or have a sideline business, is this allowed with your employment contract?
- What are your rights to copyrights, inventions or creative outputs while in the job?
- Is there a restraint of trade in the event of a termination?
- If you wanted to start a business after you leave your employment are you allowed to work with their customers (how long it is before you can approach them)?
- What happens if your employer sells the business?
- Are you allowed to work for a competitor within a certain time frame of leaving the previous job?
Provided that an offer of employment has been made, and accepted, you are "a person intending to work" whether or not they have signed an employment agreement.
As an employee, you have many of the same protections as someone who has commenced work, and also some obligations. Should you decide not to commence work, you may have to provide a period of notice to your employer. However, the employer cannot withdraw an offer of employment once it has been accepted. To do so would run the risk of a personal grievance being raised by you.
An employee who does not have an agreement prior to beginning work may then bargain on each and every point in the agreement, when that it presented after commencement of employment. The employer and employee may then negotiate over the terms until they come to agreement.
From 1 July 2011, it is mandatory a signed employment agreement is held on file by the employer for every employee. This will include casual, part-time, fixed term and permanent employees.
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