What makes for a good Personal Grievance case?

Do you have a good case?  This is very important, because you don’t want to start a situation without having a chance of it winning.  Like war, a personal grievance is easy to start, but hard to control what happens next.  Before you start, you want to know your chances.  These situations are very complex, and your lawyer or advocate will give you an idea of your prospects (see here for more discussion), but here are the basics. 

Process is more important than substance

It’s less about what you did, and more about how the employer dealt with it.  The employment judiciary (the Employment Relations Authority and the Employment Courts- see here for a description, and here for different laws in different countries), are pretty clear that they don’t like to decide what an employer ought to have decided; they prefer not to substitute in their opinion for that of the employer, so often the employer gets to decide what happened and what that means. 

But, they are red-hot on making sure that make employers act responsibly with this power, and are fair in how they exercise it.  To give an example, the employer gets to decide if an employee is responsible for an altercation with a customer, and neither the employee or the courts can say they should have decided differently.  But the courts may find that the employer came to that conclusion unfairly, because they did not get all the possible evidence, or did not give the employee an fair opportunity to explain.

The onus is on the employer to get it right

With this power comes responsibility, and often a case is a harsh evaluation of what the employer did to evaluate whether they did it right.  If an employer did not follow a fair process, or cannot easily demonstrate they followed a fair process, then there is a good chance that the employee has at least an arguable case.

Documents and records

Mostly importantly, did the employer follow a fair process when doing what they did?  Secondly, but perhaps equally important, can they demonstrate they followed a fair process?  Without good documentation, the employer is relying upon people’s memories, and it becomes a ‘he said, she said’ situation, and ambiguity favours the employee.  So review what documents you were provided; if it is not clear from the paperwork what happened, and that added detail needs to be provided verbally, then that makes for a stronger case for you.

Your homework- dates, details and people

This works both ways too- the less you can state clearly what happened, the less sure the court will be that your version is the truth.  Often details get lost in time, and we end up with vague recollections of ‘at some stage in the lunchroom, I think it was a Monday but I can’t recall the date, she said something about my…’ you get the idea.  Details demonstrate certainty.  If you clearly point out what was said, by who, where, when, and in front of which people who can corroborate, then you’ve a stronger case.

Mixed signals

The employer is going to present simplified version of the truth from their perspective.  But life is never simple, and stories are often complex.  If you can find evidence that it was never that simple, that helps.  A good place to start is your last performance review- did you get positive feedback?  Were any issues raised?  No? but six months later the employer is saying there are major issues?   Your organisation is not a single unified team of everyone on the same page, and evidence that some parts agree with you is good evidence.