Time limit for raising a personal grievance

by The Findlaw Team

Under New Zealand employment law, there is a 90-day time limit within which an employee can raise or submit a personal grievance if they wish to pursue one with their employer (or ex-employer. This time limit is set by section 114 of the Employment Relations Act 2000.

The personal grievance must be “raised” within 90 days of the date on which the action believed to constitute the personal grievance occurred or came to the notice of the employee. However, the employer can consent to the personal grievance being submitted outside the 90-day timeframe. The courts have held that consent can be implied by how the employer responds when a grievance is raised.

If an employee raises their grievance outside of the time limit, and the employer does not agree to an extension, they will be unable to have their claim determined by the Employment Relations Authority or Court, unless there are “exceptional circumstances”.

Case example

Commissioner of Police v Hawkins (2009), the Court of Appeal looked at implied consent to raise a grievance outside of the time limit.

The employee was discharged from the police force on assault charges. He raised a personal grievance for unjustified dismissal, but was outside of the 90-day time limit.

The employer did not expressly give the employee consent to file a personal grievance after the 90-day period, but the Employment Court held that the employer’s lack of protest and active engagement with the employee implied consent. The employer appealed.

The appeal was dismissed by the Court of Appeal. The issue was not whether the employer had turned its mind to the 90-day limit, but whether its conduct indicated that it had accepted an extension of the time limit. In this case, the employer’s conduct had indicated this.

Extension of the time limit due to exceptional circumstances

Employees can apply to the Authority for an extension of the 90-day period if the delay has been caused by exceptional circumstances. Exceptional circumstances include where:

  • The employee has been so affected or traumatised by the matter that they were unable to promptly consider raising a grievance within the time period;
  • An agent failed to raise the grievance on behalf of the employee;
  • The employer failed to provide a statement of reasons for dismissal as requested by the employee; or
  • The employment agreement does not contain an explanation concerning resolution of the employment relationship problems as required under the ERA 2000.Whether or not the particular circumstances are held to be “exceptional” by the Authority or Court will depend on the individual details of a case. 

Case example

In Creedy v Commissioner of Police (2008), the Supreme Court considered whether the employee should be permitted to bring a personal grievance out of time. The employee did not raise a grievance in a timely way in relation to his dismissal because, on the advice of his lawyer, he understood that he did not need to do so.

The Supreme Court found that the employee did not make any arrangements with the lawyer to raise a personal grievance on his behalf. Further, there was no evidence that the employee told the lawyer that he wanted to challenge his departure, or even that the lawyer was acting for him within 90 days of his dismissal.

The Supreme Court considered the phrase “exceptional circumstances”. In Wilkins & Field Ltd v Fortune (1998), the Court of Appeal defined “exceptional circumstances” as those which are “unusual, outside the common run, perhaps something more than special and less than extraordinary”. The Supreme Court preferred to characterise “exceptional circumstances” as simply “unusual” because it accorded with ordinary English usage, was easier to apply, and:

“...the short limit of 90 days, and the potentially serious consequences for employees of not being able to bring a grievance, support an interpretation which does not limit unduly the power to extend time.”

The Court went on to say:

“Having said that, we also emphasise that Parliament has imposed a 90 day limit to ensure that employers are notified promptly of alleged grievances. Time should therefore be extended only if exceptional circumstances are truly established and, in addition, the overall justice of the case (which includes taking account of the position of an employer facing a late claim) so requires.”

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