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What is an Unjustified Disadvantage

Updated: Feb 28

An employee may raise a personal grievance against their employer, or former employer, if they believe they have been unjustifiably disadvantaged in the workplace. For most, this is legal jargon; so in this post I aim to break down the unjustified disadvantage to provide clarity on when you may have a personal grievance.


The Employment Relations Act 2000


Pursuant to section 103 of the Employment Relations Authority, an employee will have a personal grievance against their employer, or former employer, if:


The employee’s employment, or 1 or more conditions of the employee’s employment (including any condition that survives the termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee’s disadvantage by some unjustifiable action by the employer.

Sounds confusing, right?


Breaking this down, there are therefore three criteria that must be met before there will be grounds for a personal grievance:


  1. The matter must be about a condition of employment;

  2. The condition of employment must be affected to the employee’s disadvantage; and

  3. There must have been an unjustifiable action by the employer.


A condition of the employee’s employment


The first step is being able to identify the condition of employment which has been affected. The express conditions of employment are easily found in relevant legislation and in the employment agreement. For example an express condition of employment would include:


  • The right to take sick leave;

  • The right to annual leave;

  • The right to take rest and meal breaks;

  • The right to be paid your salary or wages;

  • The agreed hours of work;

  • The agreed location of work; or

  • The employee’s role and the tasks and duties associated with that role.


The list of possible conditions of employment can become endless. In addition, where a condition of employment is not provided for expressly in an employment agreement or in legislation, the law may look to imply a condition of employment. For example, a common implied term of employment is that the employer will provide an employee with work. Another implied condition of employment is that the employer will provide the employee with a healthy and safe workplace.


Affected to the employee’s disadvantage


A condition of employment will be considered to be disadvantaged if:


  • There has been a reduction in pay or benefits;

  • The employee has suffered a loss of status and self-esteem;

  • The employee has lost job satisfaction;

  • The employee has lost managerial responsibility;

  • The employee has suffered unhappiness;

  • The employee has lost their right to work (ie through suspension);

  • The employee is unable to return to work; or

  • The employee has experienced a loss of security of employment.


Unjustifiable action


An unjustifiable action is simply an action that is unfair and unreasonable in all the circumstances. Whether an action is unfair and unreasonable can be difficult to ascertain as each case is determined on its own facts. However, with the assistance of prior case law, we are able to evaluate your claim to determine whether there has been an unjustifiable action.


Contact me


It can be difficult to determine whether you have been unjustifiably disadvantaged in the work place. That is why employment law representatives exist; to assist you in interpreting the law and to protect your rights. If you think you are being treated unfairly in the workplace, please contact me for a free and confidential discussion.


Ashleigh Fechney

LLM(Hons), BA



027 555 999 5

Ashleigh.the.Advocate@gmail.com

www.ashleightheadvocate.co.nz

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