NZ Personal Grievance Process: ERA 2000 Framework

The personal grievance is the primary statutory remedy available to New Zealand employees who believe their employer has acted unlawfully. Under the Employment Relations Act 2000 (ERA 2000), an employee can raise a personal grievance, attempt mediation, and — if unresolved — apply to the Employment Relations Authority for investigation. This article maps the framework: the grounds, the timeframes, the process, and the remedies.

Statutory Basis — ERA 2000 ss.103, 103A, 114

Under ERA 2000 s.103(1), an employee may have a personal grievance against their employer or former employer for any of the following grounds:

The grounds in s.103 are exhaustive — only these matters constitute personal grievances. Other contractual disputes may be brought as breach of contract claims separately.

Employment NZ personal grievance hub: https://www.employment.govt.nz/resolving-problems/raising-an-employment-relationship-problem/personal-grievances/

The Test for Justification — s.103A

Under ERA 2000 s.103A, the test for whether a dismissal or action is justifiable is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

The test is objective. The Employment Relations Authority and Employment Court ask:

1. Did the employer have good reason for the action (e.g. genuine misconduct, genuine redundancy)?
2. Did the employer follow a fair process?
3. Did the employer give the employee a reasonable opportunity to respond before deciding?
4. Did the employer genuinely consider the employee’s response?
5. Was the action (dismissal, warning, change of duties) a proportionate response?

A “yes” on substantive grounds but a “no” on procedural fairness can still result in an unjustified action finding. Equally, a fair process that culminates in a clearly unwarranted outcome is also unjustified.

Timeframes — s.114

General 90-day window

Under ERA 2000 s.114(1), an employee must raise a personal grievance within 90 days of the action giving rise to it (or the date the employee became aware of it, if later).

Sexual harassment 12-month window

For grievances under s.103(1)(d) (sexual harassment), the window is 12 months under s.114(1) (as amended by the Employment Relations (Triangular Employment) Amendment Act 2019 and supplemented by 2023 amendments).

Out-of-time applications

Under s.114(3), the Employment Relations Authority may grant leave for a personal grievance to proceed out of time on grounds including:

• The employee was prevented from raising the grievance by exceptional circumstances
• The employer had agreed to extend the timeframe
• It is in the interests of justice

Out-of-time applications are not granted lightly. Most successful applications involve serious illness, family bereavement, or employer-side delay.

Step 1 — Raise the Grievance with the Employer

Under s.114(2), to “raise” a personal grievance the employee must inform the employer that they have a grievance and what the grievance is. This is typically done in writing — email, letter, or formal grievance form.

The notice should:

• Identify the action complained of (date, who did what)
• Identify the ground under s.103(1) (e.g. unjustifiable dismissal)
• State the remedy sought (e.g. reinstatement, compensation)
• Be clear and contemporaneous with the 90-day window

Many employment agreements include a “raising a problem” clause that channels grievances to the HR contact or owner; the employee should follow that route where specified.

Step 2 — Attempt Resolution Internally

Most grievances are first addressed within the employer’s grievance procedure. Common internal steps:

1. The employee meets with their manager or HR
2. The employer investigates the grievance
3. The employer responds with a position
4. The parties attempt to reach agreement

Internal resolution preserves the employment relationship where possible. Even where the employee has been dismissed, internal discussions can lead to a settlement (e.g. additional notice, reference, payment in lieu of reinstatement).

Step 3 — Mediation (Free, via Employment NZ)

If internal resolution fails, the parties may use the free mediation service provided by MBIE under ERA 2000 Pt 10. Mediation is typically:

• Initiated by the employee or employer contacting Employment NZ
• Scheduled within 4–6 weeks
• Conducted by phone, video, or in person
• Confidential and without prejudice
• Non-binding (unless a settlement is recorded under s.149)

A s.149 settlement is binding and enforceable. It typically includes a payment, sometimes a reference, and a release of all claims arising from the employment.

Most personal grievances resolve at mediation — over 70% of cases reaching the mediation stage settle without further proceedings.

Employment NZ mediation: https://www.employment.govt.nz/resolving-problems/steps-to-resolve/mediation/

Step 4 — Apply to the Employment Relations Authority

If mediation fails, the employee may apply to the Employment Relations Authority (ERA — the dispute-resolution body) under ERA 2000 Part 10. The application is filed online at https://www.era.govt.nz/.

The Authority is investigative, not adversarial. Under s.157(1), the Authority’s role is to:

• Investigate facts
• Determine the merits
• Make a determination

Hearings are typically less formal than court proceedings. Lawyers may attend; many parties are self-represented or use union representation. The Authority makes determinations within several weeks of the hearing.

Step 5 — Authority Determination

The Authority’s determination may include:

• A finding that the grievance is justified or unjustified
• An order for reinstatement (s.125)
• A monetary award for lost wages (s.123(1)(b))
• Compensation for hurt and humiliation (s.123(1)(c))
• A penalty against the employer (s.134) for breach of statute
• Costs (s.157)

The Authority is one of the few NZ jurisdictions where reinstatement is the primary remedy under s.125 — although in practice reinstatement is rarely ordered, and most determinations involve monetary awards.

Step 6 — Appeal to the Employment Court

Either party may challenge an Authority determination by applying to the Employment Court under ERA 2000 s.179. The Court hears the matter de novo (entirely fresh), not as an appeal of the Authority’s reasoning.

The Court’s process is more formal than the Authority’s:

• Pleadings, discovery, witness statements
• Hearing typically scheduled 6–12 months after filing
• Determination weeks to months after hearing
• Costs awards more substantial

Further appeals lie to the Court of Appeal on questions of law (s.214).

Remedies in Detail

Reinstatement — s.125

The employee returns to the same position. Reinstatement is the primary remedy on paper but rarely ordered in practice — typically only where the employment relationship can realistically resume.

Lost wages — s.123(1)(b)

Compensation for the wages the employee would have earned but for the unjustified action. Typically 3–6 months for a successful unjustified dismissal claim. Subject to mitigation — the employee must seek alternative employment.

Compensation for hurt and humiliation — s.123(1)(c)

The Employment Court applies a tiered approach (introduced in Waikato District Health Board v Archibald [2017] NZEmpC 132 and updated in subsequent cases):

• Band 1 (low): up to ~NZ$10,000
• Band 2 (mid): NZ$10,000–NZ$40,000
• Band 3 (high): NZ$40,000–NZ$150,000+

The band depends on severity, the employee’s vulnerability, and the impact.

Penalties — s.134

For breach of statutory obligations (e.g. failure to provide written agreement under s.65, failure to pay minimum wage), the Authority/Court can impose penalties paid to the employee or to the Crown.

Mitigation — s.124

Awards may be reduced where the employee’s own conduct contributed to the situation. Common deductions: 5–25% for varying degrees of contribution.

Common Personal Grievance Scenarios

Scenario A — Unjustified dismissal after a single incident

Employee dismissed for one incident of poor performance. Test: was a fair process followed? Was the employee warned? Was the response proportionate? Often successful for the employee where the employer dismissed without prior warnings or without giving an opportunity to respond.

Scenario B — Constructive dismissal

Employee resigns due to employer’s conduct (e.g. demotion without consultation, sustained bullying). Treated as a dismissal under s.103(1)(a). Requires evidence that the employer’s conduct was so serious that resignation was the only reasonable option.

Scenario C — Disadvantage during employment

Employee remains employed but is denied a promotion, demoted, or has duties changed unilaterally without consultation. Brought under s.103(1)(b).

Scenario D — Discrimination

Employee subjected to adverse treatment on a prohibited ground (sex, age, race, religion, sexual orientation, disability, etc. — see Human Rights Act 1993 s.21). Brought under s.103(1)(c).

Practical Tips for Employees

1. Diary the 90-day window from the date of the action.
2. Document everything — emails, meeting notes, witness names.
3. Raise the grievance in writing within the window.
4. Try mediation first — free, fast, often resolves the issue.
5. Consult a union representative or community law centre if uncertain.

Practical Tips for Employers

1. Follow process — even where the substantive position is sound.
2. Document each step — investigation, response opportunity, decision rationale.
3. Use mediation early — costs less than Authority proceedings.
4. Ensure written employment agreements comply with s.65 — including the s.65(2)(f) explanation of dispute resolution.

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Disclaimer

Legal information, not legal advice. MmowW Scrib🐮 is operated by a licensed Gyoseishoshi (行政書士) office in Japan. We are not New Zealand lawyers or licensed immigration advisers.

Sources

• Employment NZ personal grievances: https://www.employment.govt.nz/resolving-problems/raising-an-employment-relationship-problem/personal-grievances/
• Employment Relations Authority: https://www.era.govt.nz/
• Employment Relations Act 2000: https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM58317.html
• Employment NZ mediation: https://www.employment.govt.nz/resolving-problems/steps-to-resolve/mediation/