Updated: Jul 27, 2022
I've had a few people contact me lately, concerned about how the '90-day' rule applies for personal grievances, and I thought it would be a good time to provide some further information in this space.
If your employment has been terminated, you have 90-days from the date of termination to raise a personal grievance. This means the counter starts from your last day of employment, not from the date you received notice of termination.
If you were employed, but on garden leave, during your notice period, your 90-day period will start on the last day of your notice period.
In New Zealand Automobile Association Inc v McKay  2 ERNZ 622 (EC), the employee was dismissed with one month’s notice. He raised an unjustified dismissal PG during the notice period, but the Employment Court held this was not possible because his employment had not been formally terminated. During that period, he could only have raised a disadvantage PG. This means the employee needs to wait until after the termination has actually occurred.
If you were paid notice in lieu (that is, a bulk payment of your notice), your 90-days should apply from the last day of when your notice period would have been.
In Poverty Bay Electrical Power Board v Atkinson  3 ERNZ 413 (EC), the employee was dismissed and paid in lieu of working out his notice (3 months). He raised his personal grievance four months after that payment was made. This was held to be in time, because the 90-day period started at the end of when the three-month notice period would have ended. This means he had technically only taken only one month to raise the personal grievance.
You should expect some pushback from your employer. However, you're welcome to copy/paste the above cases to support your claim.
You can read more about what an unjustified disadvantage is here.
With disadvantages, the 90-day period starts from the date at which the employee becomes aware that they have been disadvantaged. If this is a one-off event, this can be easy. However, where there is an ongoing failure of the employer, the 90-day period starts at the end of that ongoing failure.
For example, if you're claiming unjustified disadvantage in relation to a suspension, the 90-days would start from the last day of your suspension.
If your disadvantage is directly related to your dismissal, you do not need to raise it as a separate personal grievance. The Employment Relations Authority has the power to turn your unjustified dismissal claim into an unjustified disadvantage claim if it considers you don't meet the threshold for unjustified dismissal, but that there were nonetheless some disadvantages.
OUT OF TIME
If you're clearly out of time, there are options to raise a personal grievance: however, you must show that there are "exceptional circumstances." This will include situations where you physically could not have raised a personal grievance (because you were in hospital, for example), or where you gave a legal representative instructions to raise a personal grievance but they failed to do so.
This is a legally difficult area, and it is only in rare situations where a personal grievance can be raised out of time. However, it may well be that you've already raised a personal grievance: technically, a personal grievance is any correspondence which alerts the employer to an employment relations problem. It doesn't need to say: "This is a personal grievance."
Have a look at your employment agreement: there should be some provisions in there about raising an employment relationship problem. Have you met those conditions?
Sometimes it is easier to claim that you've already raised a personal grievance, and that you're seeking to provide clarity and progress the personal grievance.
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Legal AF Limited t/a Ashleigh the Advocate
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