Area School Teachers' Collective Agreement (ASTCA)

Personal grievances and disputes shall be addressed in accordance with the provisions of Part 9 of the Employment Relations Act 2000.

8.1 Employment Relationship Problem Resolution Services

The following is a plain language explanation of the employment relationship problem resolution services.

What is an employment relationship problem?

It is a problem between employee and employer. For example, it might be a personal grievance or a dispute about a provision in an employment agreement.

Resolving an employment relationship problem

The employee and employer should first make a reasonable effort to discuss the problem and settle it by mutual agreement. (If it’s a personal grievance, it must first be raised with the employer and within 90 days - Personal Grievances are explained further below).

An employee (or employer) has the right to be represented at any stage.

When a problem arises, union members should contact their local NZEI Te Riu Roa or PPTA Te Wehengarua field officer for advice and representation.

Employers should contact their local NZSTA adviser or other representative of their choice.

Personal Grievances

A personal grievance is a particular type of employment relationship problem that normally must be raised with the employer within 90 days of the grievance arising.

An employee may have a personal grievance where:

• They have been dismissed without good reason, or the dismissal was not carried out properly

• They have been treated unfairly

• Their employment or a condition of their employment has been affected to their disadvantage by an unjustified action of their employer

• They have experienced sexual or racial harassment, or have been discriminated against because of their involvement in a union or other employee organisation, or have suffered duress over membership or non-membership of a union or other employee organisation

• They have been discriminated against in terms of the prohibited grounds of discrimination under the Human Rights Act 1993

Note: The full meaning of the terms personal grievance, discrimination, sexual harassment, racial harassment, and duress, shall be the meaning given by sections 103 to 110 inclusive of the Employment Relations Act 2000.

As with other employment relationship problems, the parties should always try to resolve a personal grievance through discussion.

Either party can refer a personal grievance to the Employment Relations Service of the Ministry of Business, Innovation & Employment for mediation assistance, or to the Employment Relations Authority.
If the problem relates to a type of discrimination that can be the subject of a complaint to the Human Rights Commission under the Human Rights Act 1993, the person can either take a personal grievance, or complain to the Human Rights Commission, but not both. If in doubt, advice should be sought before deciding.

Services available

To help resolve employment relationship problems, the Ministry of Business, Innovation and Employment provides:

An information service

This is free. The Ministry’s Employment Relations Service’s internet address is http://employment.govt.nz/er/.

Mediation Service

The Mediation Service is a free and independent service available through the Ministry of Business, Innovation and Employment. This service helps to resolve employment relationship problems and generally to promote the smooth conduct of employment relationships.

Mediation is a mutual problem solving process, with the aim of reaching an agreement, assisted by an independent third party.

If the parties can’t reach a settlement they can ask the mediator, in writing, to make a final and binding decision.

A settlement reached through mediation and signed by the mediator at the request of the parties is final, binding and enforceable. Neither party can then take the matter any further and either party can be made to comply with the agreed settlement by court order.

If the problem is unresolved through mediation either party may apply to have the matter dealt with by the Employment Relations Authority.

The Employment Relations Authority

This Authority is an investigative body that operates in an informal way. It looks into the facts and makes a decision on the merits of the case and not on the legal technicalities.

Either an employer or an employee can refer an unresolved employment relationship problem to the Authority by filing the appropriate forms.

The Authority may call evidence, hold investigative meetings, or interview anyone involved. It can direct the parties to try mediation. If mediation is unsuitable or has not resolved the problem, the Authority will make a decision that is binding on all parties. Any party can contest the Authority’s decision through the Employment Court.

Note: All employment relationship problems, including personal grievances and any dispute about the interpretation or application of this agreement, must be resolved under Parts 9 and 10 of the Employment Relations Act 2000.

8.2 Personal Grievance

Sections 103 to 110B are reproduced below from Part 9 of the Employment Relations Act 2000.

103 Personal Grievance

(1) For the purposes of this Act, personal grievance means any grievance that an employee may have against the employee’s employer or former employer because of a claim—

(a) that the employee has been unjustifiably dismissed; or

(b) that the employee’s employment, or 1 or more conditions of the employee’s employment (including any condition that survives 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; or

(c) that the employee has been discriminated against in the employee’s employment; or

(d) that the employee has been sexually harassed in the employee’s employment; or

(da) that the employee has been treated adversely in the employee’s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence; or

(e) that the employee has been racially harassed in the employee’s employment; or

(f) that the employee has been subject to duress in the employee’s employment in relation to membership or non-membership of a union or employees organisation; or

(g) that the employee’s employer has failed to comply with a requirement of Part 6A; or

(h) that the employee has been disadvantaged by the employee’s employment agreement not being in accordance with section 67C, 67D, 67G, or 67H; or

(i) that the employee’s employer has contravened section 67F or 67G(3); or

(i) that the employee’s employer has, in relation to the employee,—

(i) engaged in adverse conduct for a prohibited health and safety reason; or

(ii) contravened section 92 of the Health and Safety at Work Act 2015 (which prohibits coercion or inducement); or

(k) that the employer has retaliated, or threatened to retaliate, against the employee in breach of section 21 of the Protected Disclosures (Protection of Whistleblowers) Act 2022 (because the employee intends to make or has made a protected disclosure).

(2) For the purposes of this Part, a representative, in relation to an employer and in relation to an alleged personal grievance, means a person—

(a) who is employed by that employer; and

(b) who either—

(i) has authority over the employee alleging the grievance; or

(ii) is in a position of authority over other employees in the workplace of the employee

alleging the grievance.

(3) In subsection (1)(b), unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, application, or operation, of any provision of any employment agreement.

(4) For the purposes of sections 103B, 115A, and 123A, the provisions of this Act that describe, define terms relating to, and provide for the application of the grounds for a personal grievance under subsection (1) apply with all necessary modifications as if—

(a) references to the employer were references to the controlling third party; and

(b) references to the employee’s employment included work the employee has performed under the control or direction of a controlling third party.

103A Test of justification

(1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be determined, on an objective basis, by applying the test in subsection (2).

(2) The test is whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time the dismissal or action occurred.

(3) In applying the test in subsection (2), the Authority or the court must consider—

(a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the allegations against the employee before dismissing or taking action against the employee; and

(b) whether the employer raised the concerns that the employer had with the employee before dismissing or taking action against the employee; and

(c) whether the employer gave the employee a reasonable opportunity to respond to the employer's concerns before dismissing or taking action against the employee; and

(d) whether the employer genuinely considered the employee's explanation (if any) in relation to the allegations against the employee before dismissing or taking action against the employee.

(4) In addition to the factors described in subsection (3), the Authority or the court may consider any other factors it thinks appropriate.

(5) The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were—

(a) minor; and

(b) did not result in the employee being treated unfairly.

103B Joining controlling third party to personal grievance

(1) This section applies if—

(a) an employee has—

(i) raised a personal grievance in accordance with section 114; and

(ii) applied to the Authority to resolve a personal grievance with the employee’s employer; and

(b) the personal grievance relates to an action that is alleged to have occurred while the employee was working under the control or direction of a controlling third party.

(2) The employee or the employer, or both, may apply to the Authority or the court to join the controlling third party to the proceedings to resolve the personal grievance.

(3) The Authority or the court must grant the application to join a controlling third party if the Authority or the court is satisfied—

(a) that the requirement to notify the controlling third party in accordance with section 115A has been complied with; and

(b) that an arguable case has been made out—

(i) that the party to be joined to the proceedings is a controlling third party; and

(ii) that the party’s actions caused or contributed to the personal grievance.

(4) The Authority or the court may, at any stage of the proceedings, of its own motion join a controlling third party to the proceedings by order.

(5) If the Authority or the court joins the controlling third party to the proceedings, the Authority or the court must consider whether to direct the employer, the employee, and the controlling third party to use mediation services to seek to resolve the personal grievance.

104 Discrimination

(1) For the purposes of section 103(1)(c), an employee is discriminated against in that employee’s employment if the employee’s employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or the employee’s union membership status or involvement in union activities in terms of section 107,—

(a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(b) dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment; or

(c) retires that employee, or requires or causes that employee to retire or

(2) For the purposes of this section, detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

(3) This section is subject to the exceptions set out in section 106

105 Prohibited grounds of discrimination for purposes of section 104

(1) The prohibited grounds of discrimination referred to in section 104 are the prohibited grounds of discrimination set out in section 21(1) of the Human Rights Act 1993, namely-

(a) sex:
(b) marital status:
(c) religious belief:
(d) ethical belief:
(e) colour:
(f) race:
(g) ethnic or national origins:
(h) disability:
(i) age:
(j) political opinion:
(k) employment status:
(l) family status:
(m) sexual orientation.

(2) The items listed in subsection (1) have the meanings (if any) given to them by section 21(1) of the Human Rights Act 1993.

106 Exceptions in relation to discrimination

(1) Section 104 must be read subject to the following provisions of the Human Rights Act 1993 dealing with exceptions in relation to employment matters:

(a) section 24 (which provides for an exception in relation to crews of ships and aircraft):

(b) section 25 (which provides for an exception in relation to work involving national security):

(c) section 26 (which provides for an exception in relation to work performed outside New Zealand):

(d) section 27 (which provides for exceptions in relation to authenticity and privacy):

(e) section 28 (which provides for exceptions for purposes of religion):

(f) section 29 (which provides for exceptions in relation to disability):

(g) section 30 (which provides for exceptions in relation to age):

(h) section 31 (which provides for an exception in relation to employment of a political nature):

(i) section 32 (which provides for an exception in relation to family status):

(j) [Repealed]

(k) section 34 (which relates to regular forces and Police):

(l) section 35 (which provides a general qualification on exceptions):

(m) section 70 (which relates to superannuation schemes).

(2) For the purposes of subsection (1), sections 24 to 35 of the Human Rights Act 1993 must be read as if they referred to section 104 of this Act, rather than to section 22 of that Act. In particular,—

(a) references in sections 24 to 29, 31, and 32 of that Act to section 22 of that Act must be read as if they were references to section 104(1); and

(b) references in section 30 or section 34 of that Act—

(i) to section 22(1)(a) or 22(1)(b) of that Act must be read as if they were references to section 104(1)(a); and

(ii) to section 22(1)(c) of that Act must be read as if they were references to section 104(1)(b); and

(iii) to section 22(1)(d) of that Act must be read as if they were references to section 104(1)(c).

(3) Nothing in section 104 includes as discrimination—

(a) anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1) of the Human Rights Act 1993 (which relate to measures to ensure equality); or

(b) preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of section 74 of the Human Rights Act 1993 (which relate to pregnancy, childbirth, or family responsibilities); or

(c) retiring an employee or requiring or causing an employee to retire at a particular age that has effect by virtue of section 149(2) of the Human Rights Act 1993 (which is a savings provision in relation to retirement ages specified in certain employment contracts).

(4) Despite section 104, an employee is not discriminated against in that employee’s employment simply because the employee’s employment agreement or terms and conditions of employment are different from those of another employee employed by the same employer by reason of the employee being a member of a union.

(5) Section 104 must be read subject to section 9(3).

107 Definition of involvement in activities of union for purposes of section 104

(1) For the purposes of section 104, involvement in union activities means that, within the 18 months before the action complained of, the employee—

(a) was an officer of a union or part of a union, or was a member of the committee of management of a union or part of a union, or was otherwise an official or representative of a union or part of a union; or

(b) had acted as a negotiator or representative of employees in collective bargaining; or

(ba) had participated in a strike lawfully; or

(c) was involved in the formation or the proposed formation of a union; or

(d) had made or caused to be made a claim for some benefit of an employment agreement either for that employee or any other employee, or had supported any such claim, whether by giving evidence or otherwise; or

(e) had submitted another personal grievance to that employee’s employer; or

(f) had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or

(g) was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.

(2) For the purposes of section 104, union membership status means that, within the 18 months before the action complained of, the employee—

(a) was a member of a union; or

(b) intended to join a

(2)  [Repealed]

108 Sexual harassment

(1) For the purposes of sections 103(1)(d) and 123(d), an employee is sexually harassed in that employee's employment if that employee's employer or a representative of that employer-

(a) directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains-

(i) an implied or overt promise of preferential treatment in that employee's employment; or

(ii) an implied or overt threat of detrimental treatment in that employee's employment; or

(iii) an implied or overt threat about the present or future employment status of that employee; or

(b) by:

(i) the use of language (whether written or spoken) of a sexual nature; or

(ii) the use of visual material of a sexual nature; or

(iii) physical behaviour of a sexual nature,-

directly or indirectly subjects the employee to behaviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee's employment, job performance, or job satisfaction.

(2) For the purposes of sections 103(1)(d) and 123(d), an employee is also sexually harassed in that employee's employment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.

108A Adverse treatment in employment of people affected by family violence

(1) For the purposes of sections 103(1)(da) and 123(1)(d), an employee is treated adversely in the employee’s employment on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence if, on the ground that the employee is, or is suspected or assumed or believed to be, a person affected by family violence (as that term is defined in section 69ABA), that employee’s employer or a representative of that employer—

(a) dismisses that employee, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed; or

(b) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially the same qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(c) subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be subjected to such detriment; or

(d) retires that employee, or requires or causes that employee to retire or resign.

(2) Subsection (1) applies regardless of how long ago the family violence occurred or is suspected or assumed or believed to have occurred, and even if the family violence occurred or is suspected or assumed or believed to have occurred before the person became an employee.

109 Racial harassment

(1) For the purposes of sections 103(1)(e) and 123(d), an employee is racially harassed in the employee's employment if the employee's employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly-

(a) expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and

(b) is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and

(c) has, either by its nature or through repetition, a detrimental effect on the employee's employment, job performance, or job satisfaction.

110 Duress

(1) For the purposes of section 103(1)(f), an employee is subject to duress in that employee's employment in relation to membership or non-membership of a union or employees organisation if that employee's employer or a representative of that employer directly or indirectly-

(a) makes membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or

(b) makes non-membership of a union or employees organisation or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to retain that employee's employment; or

(c) exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee-

(i) to become or remain a member of a union or employees organisation or a particular union or employees organisation; or

(ii) to cease to be a member of a union or employees organisation or a particular union or employees organisation; or

(iii) not to become a member of a union or employees organisation or a particular union or employees organisation; or

(iv) in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or

(v) on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or

(vi) to participate in the formation of a union or employees organisation; or

(vii) not to participate in the formation of a union or employees organisation.

(2) In this section and in section 103(1)(f), employees organisation means any group, society, association, or other collection of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it.

110A Adverse conduct for prohibited health and safety reason

(1) For the purposes of this Part, an employer engages in adverse conduct for a prohibited health and safety reason if the employer or a representative of the employer, for a prohibited health and safety reason,—

(a) dismisses an employee; or

(b) refuses or omits to offer or afford to the employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available to other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or

(c) subjects the employee to any detriment in circumstances in which other employees employed by the employer in work of that description are not or would not be subjected to such detriment; or

(d) retires the employee, or requires or causes the employee to retire or resign.

(2) For the purposes of subsection (1), conduct described in that section is engaged in for a prohibited health and safety reason if it is engaged in for a reason described in section 89 of the Health and Safety at Work Act 2015.

(3) An employer may be found to have engaged in adverse conduct for a prohibited health and safety reason only if the prohibited health and safety reason was a substantial reason for the conduct.

(4) For the purposes of subsection (3), a prohibited health and safety reason is presumed to be a substantial reason for the conduct unless the employer proves, on the balance of probabilities, that the reason was not a substantial reason for the conduct.

(5) It is a defence to an action for a personal grievance under section 103(1)(j)(i) if the employer proves that—

(a) the conduct was reasonable in the circumstances; and

(b) a substantial reason for the conduct was to comply with the requirements of the Health and Safety at Work Act 2015 or other relevant health and safety legislation (as defined in section 16 of that Act).

(6) For the purposes of this section,—

(a) an employer also engages in adverse conduct if the employer or a representative of the employer, in relation to the employee,—

(i) organises to take any action referred to in subsection (1) or threatens to organise or take that action; or

(ii) requests, instructs, induces, encourages, authorises, or assists another person to engage in adverse conduct for a prohibited health and safety reason:

(c) detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

110B Retaliation against whistleblower

(1) For the purposes of this Part, retaliate has the meaning given in section 21 of the Protected Disclosures (Protection of Whistleblowers) Act 2022.

(2) An employer may be found to have retaliated, or threatened to retaliate, only if the protected disclosure was a substantial reason for the employer’s relevant actions or omissions.

(3) The burden of proof is on the employer to prove, on the balance of probabilities, that the disclosure was not a substantial reason for the employer’s actions or omissions.

These provisions are contained in Part 9 of the Employment Relations Act 2000 and can be accessed through the following link:

http://www.legislation.govt.nz/act/public/2000/0024/latest/DLM60316.html.