Personal grievances are formal legal claims that an employee or former employee may raise against their employer under the Employment Relations Act 2000 (NZ).

The Law

Section 114(2) of the Employment Relations Act 2000 (Act) provides that a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.

A personal grievance must be raised within the prescribed time limited of 90 days from which the action alleged to amount to the personal grievance occurred or came to the notice of the employee, whichever is later. In cases of sexual harassment, the time limit for raising a personal grievance is 12 months from the alleged conduct.

Johnston v Te Whatu Ora [2026] EmpC 27

The recent case of Johnston v Te Whatu Ora provides a handy overview of what raising a personal grievance may look like and looks at the issue of timeliness.  

Mr Johnston was an occupational therapist employed by Te Whatu Ora. Te Whatu Ora raised performance concerns with Mr Johnston, who suggested he may have a disability that was affecting his ability to perform the role. Mr Johnston was later dismissed on 6 December 2022 as his occupational therapist registration was suspended on what appeared to be an indefinite basis.

A day later a representative wrote to Te Whatu Ora on behalf of Mr Johnston raising a personal grievance for unjustified dismissal. It discussed the ‘punitive approach rather than being supportive of someone with a genuine disability to help him perform his role.’ A further letter dated 19 December 2022 discussed his disabilities, the employer’s obligations to support and remove barriers to performance and to not discriminate based on disability.

A letter dated 10 November 2023 (from a new advocate) referred to the express personal grievance for unjustified dismissal and the implied personal grievance of discrimination.

The Court then grappled with the issue of whether Mr Johnston had raised a personal grievance for discrimination in time.

The Court noted that the framing and language of a personal grievance for discrimination, or any personal grievance, is not required to correspond with the statutory language of the Act. When viewed objectively, the communications from the employee had put Te Whatu Ora on notice that it had a positive obligation to support Mr Johnston as an employee with a disability, and that he believed that its failure to do so constituted discrimination.

It did not matter that the employee had not expressly referred to his complaint as a personal grievance discrimination claim.

The Court found the initial letters were enough to notify the employer of a discrimination claim and was raised within the time limit. 

The case also notes there is no higher bar for certain authorities in raising a personal grievance, the test is strictly one of sufficiency. 

Te Whatu Ora v Johnston serves as a friendly reminder to employers that the bar for what constitutes raising a personal grievance is low and designed to ensure employees have an accessible route to remedies.

Raising a Personal Grievance   

The issue of what amounts to raising a personal grievance has been dealt with by the Court on many occasions. Some key principles emerge and have been usefully summarised in Chief Executive of Manukau Institute of Technology v Zivaljevic [2019] NZEmpC 132 at [36]-[38]:

• The grievance process is designed to be informal and accessible. A personal grievance may be raised orally or in writing. There is no particular formula of words that must be used. Where there had been a series of communications, not only would each be examined as to whether it might constitute raising the grievance, but the totality of those communications might also constitute raising the grievance.
• It does not matter what an employee intended their complaint to be, or the process for dealing with it in the first instance. It also does not matter whether the employer recognised the complaint as a personal grievance. The issues are whether the nature of the complaint was a personal grievance within the meaning of s 103 of the Act and, if so, whether the employee’s communications complied with s 114(2) of the Act by conveying the substance of the complaint to the employer.
• It is insufficient for an employee simply to advise an employer that the employee considers that he or she has a personal grievance or even specifying the statutory type of personal grievance. The employer must know what it is responding to; it must be given sufficient information to address the grievance, that is to respond to it on its merits with a view to resolve it soon and informally, at least in the first instance.

Essentially, a personal grievance will have been raised when the employer has been provided with sufficient detail of the complaint to be able to respond to it. The intention of either party is irrelevant.

Key takeaways:

An employer may contest that a personal grievance claim was not raised in the 90-day statutory time limit, or in the case of a sexual harassment personal grievance claim, 12 months. Employees often challenge this by pointing to complaints they raised within the timeframe. The courts must grapple with whether a personal grievance has been raised in time.

Employers should know that an employee does not have to specify that the nature of their claim is a ‘personal grievance’ or even specify and identify the type of grievance. An employee must simply outline in sufficient detail, to enable the employer to respond, the issues and allegations that serve as the heart of their claim. 

This also goes to show that an employee who fails to sufficiently detail the issues that constitute their claim will fall short of what is required to raise a personal grievance. If the employee simply states, “I am raising a personal grievance for discrimination,” this will not meet the threshold for raising a personal grievance as the employer does not know what, in essence, they are responding to.

Need help with a PG? If you are unsure how to respond to a complaint by an employee or believe you may be facing a personal grievance claim, or you are an employee looking to make a PG, our team is here to help. Phone +64 3 211 0153 or email admin@cmalaw.co.nz. 

Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.