This is an easy one - right? Surely the answer is 90 days?
Well yes, and no.
Often people become confused when the 90 days starts from.
The Employment Relations Authority (ERA) has said that the 90 day period starts when the employee starts any aspect of work.
So in situations where an employee has a trial shift or undergoes an induction process the ERA says that is the time is the trial period starts.
However, to make things slightly more tricky, the 90 days trial period only applies to 'new' employees.
An employee who has had a trial shift and then signed their employment agreement isn't, at the time they sign their employment agreement, a new employee - so the employer is not covered by the 'personal grievance free' protection of the law.
Another tricky aspect is when notice is given to the employee within the 90 days period but the employee works out the notice period which takes them after the 90 days.
Can they then raise a grievance for unfair dismissal?
No - provided the notice was given within the 90 day period (and the agreement is otherwise valid) then the employee can't raise a grievance for unfair dismissal (but could for discrimination or minimum entitlement type claims).
Also it is necessary to bear in mind that '90 days' is not the same as 'three months'.
Some employers have referred to a period of three months in their employment agreements and this has been criticised by the ERA.
Raising a personal grievance
How long does an employee have to raise a personal grievance?
The short answer here is 90 days.
Again, the starting time can be a tricky one. The basic test is when the day that the action that is being complained about took place.
With a dismissal this is usually reasonably clear - however with other workplace issues such as bullying, it can be a little harder to pin down.
If an employee doesn't raise a personal grievance within 90 days of the action that they are complaining about then they are unable to raise the grievance.
Simple? Well not so fast.
The employee can raise a grievance outside of the 90 days provided exceptional circumstances exist.
For example, an employee might have been so traumatised by their dismissal that they suffered a mental breakdown and could only get in to see a lawyer after the three month period.
Provided they can prove this then they would likely be granted an extension to the 90 days.
Commencing a case after a raising a personal grievance
Once a personal grievance has been 'raised' (which is a whole article in itself), the aggrieved party has three years to commence proceedings in the ERA.
If they don't commence their case within three years then it is at an end and can't be brought by the aggrieved party.
However, like raising the personal grievance, there is the ability to plead special circumstances and have the ERA extend the timeframe to bring the case.
Unlike the raising of a personal grievance there are no hard and fast reasons which will be guaranteed to permit a case being brought late.
The ERA has the ability to make its own decision but based on previous cases it will look at why the case has been brought late, what the impact would be of it not proceeding and anything else that might be relevant to the situation.
The ERA then has to balance the applicant's position with the aim of having certainty for the other party.
If in doubt...
If you in doubt about how any time limit might impact on you then the best advice is to get advice. A quick call to Employment NZ (the Ministry of Building Innovation and Employment) on 0800 20 90 20 or your usual legal adviser could help make sense of the numerous and complex issues that can arise around what needs to be done by when.
- Chris Grenfell is a partner at Edmonds Judd.
