What makes for a hard personal grievance case?

So having discussed what makes a good case (see here for more discussion), what’s some bad signs when it comes to a having a good case? Remember this for the New Zealand legal environment (see here for more discussion).

Resigning

While you can still take a personal grievance for constructive dismissal (see here for more discussion), it’s a much harder road, with much less chance of success.  Many people will resign and there a good reasons to do so (see here for more discussion), but it shifts the burden of proof from the employer to the employee.

If the employer terminates you, they have committed the act of ceasing the employment, and the onus is on them to justify they acted fairly when doing so.  If the employee resigns, they need to prove that they did so because they were essentially forced to do so.  So from the perspective of building the strength of your case, it’s better to be pushed than to jump, but from a career point of view, resigning may be better (see here for a more in-depth discussion)

But don’t stay if that means putting up with the unfair.  If they are doing something that makes your life much worse, or failing to fix a problem (see here for a discussion on grounds for constructive dismissal) you should have to put up with that.

Saying the wrong things in the decision meeting

What strategy you take in a meeting that decided your fate (likely a disciplinary meeting, but there are other situations) plays a big part is what the employer can do, and what positions they can justify (for more on this, see here).  Your employer gets to listen to you, and make decisions accordingly.  If you take the wrong approach, your employer can balance what you say against the case they have brought against you.  So if you say something stupid or false, then that can really hamper your chances.  They don’t have to consider what you wish you had said, only what you did.

A good process

We can’t find holes that aren’t there.  If the employer has followed a good process, there’s not much that can be done- you can’t fake a good case.  Alternatively, people believe other hidden factors were involved that can be shown.  A common issue that advocates find is that sometimes they told conspiracy stories; explanations that could the ‘real’ reason, but there no grounds to believe it, no smoking gun.  This comes up most frequently with redundancies- where the employee believes it’s a sham redundancy and really about performance or personality clashes (and maybe it is) but without evidence there aren’t strong grounds. 

Taking more than 90 days to raise to the personal grievance

If you think you’ve been wronged, you have 90 days to raise a grievance with your employer.  For big things like dismissals, this is pretty straightforward.  For little things, like warnings, or inappropriate behaviour, the 90 day clock starts ticking (12 months for sexual harassment and human rights cases), so if you have to act, you can’t stick in your back pocket.