Losing a job can be one of the most traumatic events that anyone has to face. It is therefore not surprising that it takes time for people in these circumstances to get back on their feet and to think about what comes next.
It also takes people a while to be able to process what has happened and assess whether or not they think they were treated unfairly, and whether they want to do something about it.
Sadly many people also suffer significant psychological or physical conditions connected to their treatment in the workplace, and therefore are not in a position to think about suing their employer immediately.
The problem is that the law allows just 90 days for employees to raise a personal grievance claim. This applies from the date that the event occurs or when the employee becomes aware of it, if this is later. So if an employee is dismissed they have basically three months to put their former employer on notice that they are raising a personal grievance claim.
The same applies for other types of personal grievance claims, which include unjustified disadvantage, unlawful discrimination or sexual and racial harassment.
This does not mean that an aggrieved person needs to file a claim in the Employment Relations Authority within 90 days. Raising a grievance is simply putting the employer on notice that the employee has an issue with their actions.
There is no particular form that this needs to take and it can be as simple as sending an email stating the employee is raising a personal grievance, outlining the grounds, and setting out the remedies that the employee thinks will fix the problem.
Once a grievance is raised with an employer, the claimant has three years to decide whether or not to proceed with taking the employer to the Employment Relations Authority to resolve the issue, if they have not resolved the matter between them first.
The reason for these timeframes is to prevent employers from the threat of late or stale claims hanging over them and being brought well after the original action or incident occurred. These timeframes are strictly enforced by the Employment Relations Authority, but there are some specific exceptions provided for in the Employment Relations Act.
Firstly, the authority must be satisfied that the delay in raising the grievance was due to exceptional circumstances. It must then also consider whether it is just for the claim to be brought out of time.
Examples of exceptional circumstances include where the employee has been so affected or traumatised by the matter giving rise to the grievance that they have been unable to properly consider raising the grievance, or where an employee instructed a representative to raise a personal grievance within the correct timeframe, and they failed to do so.
In Telecom New Zealand Ltd v Morgan, the Employment Court rejected Andrew Morgan's application to be allowed to raise his personal grievance out of time. When Morgan was made redundant he visited his doctor who prescribed him anti-depressants that may have the effect of drowsiness and forgetfulness. He claimed that the effect of his dismissal, as well as the medication, prevented him from raising the grievance in time.
The court found that the effect of the dismissal and medication did not have the "very substantial and long-lasting effects" Morgan attributed to them. Because Morgan was able to consult with a lawyer, engage in an exit interview with his employer, undertake a job interview, and subsequently take up employment elsewhere, the court found that he was not so affected that he could not have raised his grievance in that time.
Other cases have reinforced this high threshold for raising a late claim. In Messick v The Vice Chancellor of the University of Waikato the authority found that the fact an employee was suffering from depression was not sufficient to have prevented them from raising a grievance in time, stating "parties may be depressed but able to raise a grievance, and have done so in many cases before the authority".
However, the test was met in Ford v Metallic Sweeping Ltd where the employee had raised her grievance only one month late, after she had undergone surgery and radiation treatment for breast cancer.
The authority accepted the employee had had limited contact with the outside world "in order to conserve her emotional strength for the fight against her cancer" and therefore due to the exceptional circumstances she should be able to bring the grievance out of time.
While losing a job or being treated unfairly in employment is often deeply challenging, employees should remember that the clock starts ticking from the moment the action has occurred. Once the 90-day window has closed, it will take exceptional circumstances to open it again.