An employment law specialist tells us about the legal recourse available to employees treated unfairly, whether the mothers we’ve spoken to could successfully bring a personal grievance, and what new legislation might mean
In previous instalments of our Motherhood Penalty series, we spoke to women who felt disadvantaged and discriminated against upon becoming mothers, including facing a cancelled promotion, effective demotion, lower pay, fewer opportunities, even being ghosted by their bosses. But they, and other women I’ve spoken to, haven’t wanted to take legal action.
Their reasons are very understandable. Not liking conflict. Not wanting to make things worse. Not wanting to work in a hostile environment. Not wanting to be whispered about. Not wanting to be considered a trouble-maker. Not wanting to leave the company because the job market is so tight. Not wanting to impact future job prospects and wanting a good reference. Not wanting to undergo further stress or strain. Not having spare time or spare money. Not knowing your rights.
However, it’s worth getting good advice because there are various steps you can take, you can pull out at any stage, and some advocates may not charge you unless you win a personal grievance.
What are the grounds?
The foundation of New Zealand’s employment law is the Employment Relations Act 2000. Section Four, which underpins the act, states that employers and employees must act in “good faith” – something that involves honesty, fairness, and open communication.
If your employer has mistreated you, you can bring a personal grievance. This is a formal complaint to the Employment Relations Authority (ERA) – made by an employee against their employer to address employment-related disputes and to seek compensation for infringements upon their rights or fair treatment.
The firm Sacked Kiwi (it doesn’t only deal with sackings) specialises in employment law, representing workers and advocating for their interests. Founder Alex Kersjes explains to me the grounds for bringing a personal grievance.
• Unjustifiable dismissal. You believe your employer didn’t have a good reason to terminate your employment agreement, or failed to follow a fair process. The onus is on the employer to prove they’ve been fair.
• Constructive Dismissal. You feel your working conditions have been made so unpleasant, or there’s been such a significant breach of duty, that you have no choice but to resign; or your employer has given you the option to either quit or be fired; or you’ve just been pushed out. The onus is on the employee to prove this, so document everything.
• Unjustified disadvantage. You feel you aren’t being given the same treatment as other employees or are being unfairly disadvantaged. “Any time an employer takes an action that unfairly disadvantages an employee, that constitutes a grievance,” Alex says. For instance, a demotion, or wage reduction.
• Discrimination. This happens when someone is treated unfairly or disadvantaged at work because of something about who they are, like their sex, race, age, disability, religion or other protected characteristic, rather than what they do. It’s unlawful, whether deliberate or unintentional. (This could include being discriminated against for being a mother.)
• Racial or sexual harassment happens when a person is subjected to offensive, unwanted or intimidating behaviour at work.
• Redundancy. You feel your redundancy was unfair. An employer must, among other things, make reasonable efforts to redeploy you into an alternative role after a fair process where you’re given all the relevant information.
You must raise a personal grievance within 90 days of the issue arising or coming to your attention, whichever is later. If you were fired, you’d have 90 days from the end of your employment to raise an unjustified-dismissal grievance. Extended deadlines are rare.
Getting advice
Taking on about 40 clients a week, Sacked Kiwi is contacted by about 100 people a day. Its advice is free. “If you’re looking at maintaining a relationship with the employer,” Alex says, “getting representation from someone like us is setting off a missile. We find that the best results – especially for people who want to remain employed somewhere – is giving them advice, helping them understand what’s reasonable, what’s legal, and how to communicate with their employer.”
If you want to proceed with a personal grievance, Sacked Kiwi will cover your costs until you achieve an outcome. If you don’t ‘win’, you don’t pay. “That’s so people don’t have to worry about money while they’re going through trauma,” Alex says.
He’d call it trauma? “Yes. Employment can define us as humans. When we meet someone, we ask ‘what do you do?’. Feeling devalued in employment can threaten our sense of identity and shake us to the core.”
Three steps
Firstly, Sacked Kiwi will ‘serve’ (notify) the employer, normally by email. Next up is commencing a discussion about resolution – a stage involving the employer, employee, a Sacked Kiwi advocate, and usually the employer’s lawyer or representative. Often a pragmatic conversation can resolve the matter here, Alex says. If not? A Ministry of Business, Innovation and Employment mediator joins the party.
“People are nervous but it can be cathartic,” Alex says. “Arguing and crying isn’t the norm. You don’t have to like each other, but in a mediated process, you can at least understand the issue from each other’s perspective, because otherwise there can be miscommunication.” Employers aren’t necessarily aware of all their obligations until this point, he says. And mediation isn’t just about discussing rescinded dismissals or negotiating financial settlements. “An apology, or acknowledgement that something done was wrong, can have a real value [psychologically].”
About 80% of Sacked Kiwi cases are resolved at the discussion or mediation stages. Around 5% of its cases go to an ERA hearing, and the other 15% of cases settle shortly before an ERA hearing, sometimes because the parties are uncomfortable ceding control.
An ERA determination may involve a range of remedies including financial compensation, reinstatement (or interim reinstatement), reimbursement of lost wages (until the person is reinstated or gets another job), and paying the other party’s costs. At ERA hearings, Sacked Kiwi wins around 90% of cases. An average award for compensation? Around $15,000. “More than $20,000 is rare.”
Alex understands people’s reservations about ERA hearings. “New Zealand is a small pond, and, if you’re in a small industry, or live in a small town, that pond gets really tiny. Often people say ‘I can’t have someone Googling my name and seeing this ERA complaint because it could prejudice a future employer against me’.” Sacked Kiwi mitigates that risk by securing non-publication of names in some ERA determinations.
An ERA determination can be challenged in the Employment Court.
Would they win?
I asked Alex whether the mothers whose stories we’ve told could bring successful personal-grievance claims.
First I told him about Lily. When she told her boss she was pregnant, and would take six months’ parental leave, he told her to forget about a planned promotion. “That’s horrific,” Alex says, “and if she had evidence, the potentially penalty [for] action, discrimination and disadvantage grievances could be $30,000, depending upon the impact upon her. Legally, no disadvantage should occur to someone because of parental leave.”
When Lily emailed her boss, upset about the handling of her parental leave and handover, he refused to acknowledge anything in the email until she returned six months later. Alex says this is unacceptable nonsense. “An employer is duty bound to engage with an employee on parental leave, to plan for the employee moving forward, and to actively communicate with the employee in maintaining an employment relationship.”
As Alex adds, “if an employer is looking at making organisational change, an employee on parental leave must be considered and consulted like any other employee – and they have to return to the same conditions.”
After Lily asked to work four not five days, she was finally ‘allowed’ to, but in a more-junior job, with her wage halved. Alex is appalled. “Pay is the fundamental reason people attend work, so errors around pay alone should be enough to show a constructive dismissal. And an employer has to give considered reasons for not keeping a role open, otherwise the employee would have an unjustifiable-dismissal claim.” Furthermore, an employer must consider requests for flexible hours in good faith and provide good reasons for saying no.
Lily’s employer wouldn’t consider a trial period and didn’t involve her in decision-making. “There’s definitely a grievance for that lack of consultation,” Alex says.
I tell Alex about Bailey. Before Bailey got pregnant, there was a plan for her to start managing her team, she’d done a management course, and was already managing one person. Returning from parental leave, she was told she wouldn’t manage the team. “This could certainly lead towards a grievance based on disadvantage, and potentially constructive dismissal,” Alex says.
Bailey wrote a letter expressing her feelings, and one of her bosses stopped speaking to her. “An employer ghosting an employee would be subject to a penalty of up to $20,000,” Alex says.
Meanwhile, single mother Mel was ‘allowed’ to come back full time with flexible hours. But she was blocked from doing high-level projects because she couldn’t be ‘depended on’ to be there, because she might be looking after her child. When there was a restructure, she applied for a virtually identical job, didn’t get an interview, and was effectively demoted. Alex is horrified. “An employer can’t discriminate against anyone for pregnancy or a family element.”
“And an employer needs to establish why a person is now superfluous, and look at other roles available for that person, which may include providing training.”
Would these three women win personal grievance claims? “Whilst there are always two sides to a story, and I haven’t reviewed any documents or counter-arguments, all three case studies have winnable claims given the clear breaches of good faith.”
Hoorah!
I wanted to finish this story here. Unfortunately, there’s a postscript.
On 17 June, Workplace Relations and Safety Minister Brooke van Velden introduced the Employment Relations Amendment Bill to Parliament. Although the press release predictably uses jargon like “labour market flexibility”, the General Policy Statement accompanying the bill says these changes will “re-tilt the personal grievance system”. Will they what. These are major roll-backs of worker protections.
The proposed changes will restrict an employee’s ability to raise personal grievances. If an employee’s actions amount to “serious misconduct”, the employee will be “ineligible for any remedies”. Why hasn’t the amendment bill defined ‘serious misconduct’?
“Serious misconduct is a pretty general term,” Alex says. (Might being harassed by a boss into muttering a swear word count?)
If the employee didn’t commit serious misconduct, but “contributed to the situation”, they’d be barred from receiving reinstatement – and from receiving compensation for humiliation, loss of dignity or injury to feelings, or the loss of expected benefits. Other remedies (like lost wages) may be awarded but could be reduced by up to 100%.
The terms “serious misconduct” and “contributed to the situation” give employers too much wiggle-room. “Employers could, on a whim, get rid of an employee without any repercussions and without discussion,” Alex says. “This is extraordinarily dangerous.”
“New Zealand shouldn’t be a place where you can do a Trump-esque ‘you’re fired’ action. These amendments will shift things to the point of very few successful grievance claims, and employers empowered to do what they like, when they like.”
“All this is in deep contrast with and conflict with the [current] Employment Relations Act and its intention of acting with good faith and good communication.”
Also, under proposed changes, people who earn more than $180,000 can’t bring a personal grievance for unjustified dismissal, or for disadvantage linked to the dismissal (unless their individual employment agreement opts them into protections). Say what? You should have legal recourse no matter your salary.
Other concerning changes include making it harder for people to prove they’re employees not contractors. Law firms Lane Neave and Bell Gully have good explainers of all changes proposed.
Alex doesn’t think the changes would prevent our three women from winning their claims. “I don’t see any contribution from a misconduct perspective. The only risk is if it’s deemed that the employee frustrated the process in some way. Only time will tell how the bill finally reads and is interpreted.” The coalition government will pass the bill, but (unlike with pay equity) there will be public submissions.
If you’re thinking about making one, we’ll let you know when the time is nigh. And if you’re thinking about bringing a grievance, the time may be right now.