KEY POINTS:
How often have you heard people say they'll take their employer to court because of the way they have been treated by their boss?
It may be something that's said in the heat of the moment. But for those serious about going head-to-head with their employer, they'll need nerves of steel, deep pockets and know that all their efforts may lead to nothing.
That's the view of Robert. He worked in an office and said his life was made a misery by his manager. He ended up raising a personal grievance against his employer for failing to rein in his boss and ended up with a hearing at the Employment Relations Authority.
He won his case, lost his job and had to sign a gagging order preventing him from talking about it. We can't use his real name.
The Employment Relations Act gives workers the right to pursue personal grievances against their employer over things such as discrimination, harassment (as in Robert's case), unjustified dismissal and duress.
While the steps to mediation and the Employment Relations Authority (ERA) are simple enough, the financial cost and toll on one's health can be hard.
Robert had complained to his company about his boss's bullying behaviour. But, despite meetings to resolve the issues, the firm did little or nothing to help.
Rick Hargreaves, a senior associate at law firm DLA Phillips Fox in Auckland, says raising a personal grievance with your employer is the first step to resolving issues at work.
An employee can get a lawyer involved at this stage if they want. But it could cost them as much as $800 or more if they want to be represented at a meeting with their employer.
If an employee is a member of a union then they can ask them for help. However, Robert wasn't in a union and so went alone to outline his complaints to his firm's HR manager and the company's owner.
"Perhaps they would have taken me more seriously if I had taken a lawyer with me," he says. "I thought the HR department would act on my complaint because so many of my colleagues saw what was going on and they were canvassed on it in private by the HR people.
"But weeks after the meeting - which was full of smiles and supportive comments - nothing had changed to protect me from my manager's flare-ups and nit-picking."
Hargreaves says it is in everyone's interest to settle grievances as soon as possible. Even lawyers with modest fees will be charging clients a minimum of $150 an hour and it can be two or three times that for large city law firms.
Robert could have called on the services of a Department of Labour mediator to act as an independent third party - brokering an agreement between him and his employer.
"I didn't think about using a mediator at all," he says. "I thought it was just between me and the company."
If the employee and their firm can't resolve their issues then the next legal step is a hearing at the Employment Relations Authority where both parties are sworn in, offer their point of view and present their evidence.
Faced with a hearing at the ERA, an employer will likely hire the best lawyer they can afford. Larger firms may have one on the staff and they'll almost certainly have an HR person on tap.
Applicants such as Robert often have to dig deep to hire a lawyer if they want to be represented. Depending on whom you go to you can expect to fork out up to $1000 upfront. And risk up to a further $5000 on lawyer's fees and expenses for a simple case - such as a cut-and-dried case of unjustified dismissal.
The first meeting with an employment lawyer will establish if you have a case at all and the chances of you winning it. It is something worth doing before you start rattling the sabre at work.
Robert said he started to keep a diary of how his boss treated him for about a year before he decided to go to a lawyer.
"One day I couldn't handle it any more, I resigned and went to see a lawyer," says Robert. "I had times, dates and places and emails with conflicting instructions that proved my manager was picking on me."
Even if your lawyer reckons you have a good case, there is no guarantee you will win your claim. However, Robert said his case was resolved in his favour within two hours at the ERA hearing.
"The meeting started at 9.30, I took my partner along who could talk about how my boss's actions affected my personal life and I had a witness who gave evidence - she had worked with me and saw how I was being treated," says Robert.
"When I was at work lots of people said that if I took the firm to court they would support me, give evidence and write letters. But when push came to shove no one was interested - they were all still working there and didn't want any aggro.
"But the one person who did help had already resigned - but even they needed a bit of coaxing to even talk to my lawyer on the phone."
Hargreaves says the ERA hearing is not run like a formal court as all the evidence is sent in before the meeting takes place - so the ERA member will have read everything and have their questions for each party ready.
"The authority member asks the questions and the investigation meeting will normally start with the employer and cover process, decision-making and documents," he says.
"Then they may ask if the employee has any questions and give the employer a chance to respond. In a simple case, an employee may not need a lawyer at all because the authority member will do all the work."
Hargreaves says 90 per cent of all personal grievance cases are settled either prior to mediation (which usually occurs well before the ERA investigation), at mediation or just after it. "Very few cases end up in the employment courts."
One reason for this is the financial cost. This means lengthy, complicated cases can only be pursued by the wealthy, unions or people with Legal Aid.
"Most people do not want to go to court," says Hargreaves. "Most claims are resolved with an employee who is not happy, but okay about what they are going to get. And the employer is not happy, but knows paying out a bit of money now means the claim will go away."
That's just about what happened in Robert's case. He was awarded a little over $15,000 in compensation but faced a legal bill of around $8000.
"The compensation sounds a lot," he says. "But I ended up out of a job and the guy who caused it all is sitting pretty. He was rewarded with a free holiday abroad - paid for by the firm - and kept his job."
Robert believes the company supported his old office manager because it would have reflected poorly on the HR manager and the people who appointed the man if they had backed him (Robert).
Hargreaves says that given the cost and the time in taking an employer to court, it is often better to simply find a new job and walk away. But Robert has no regrets. "I thought taking the company to court would make things better for other people. But from what I hear, my old boss is just the same - only now other people's lives are being made a misery."
* www.ers.dol.govt.nz
* www.stevehart.co.nz
* WHAT TO DO WHEN IT STARTS TO GO WRONG AT WORK
Be clear about the facts - make sure that what you think has happened or is happening is not just based on an assumption you have made or is a misunderstanding.
Employers and employees should try to resolve the problem by discussing it with each other.
Both parties are responsible for this.
Union members can ask their union, and employers can ask their employers' association, to approach the other party for them.
If an employee believes they have a personal grievance, they must raise it with their employer within 90 days of the action complained of, or the date they became aware of it, whichever is the later.
Clarify whether you do have a problem and, if so, what your problem is. Don't delay this step. Discuss your problem with family or friends or advisers to clarify what the problem actually is.
* KEEP RECORDS
Ask for written confirmation of verbal requests from your manager to start a paper trail.
Print out and file any emails you think you may need. Forward them to a home email address as well.
At meetings, use your diary for taking notes. That way you can keep an accurate record of who, what and - more importantly - when things are said.
Keep your employment contract filed safely.
Keep any dismissal letters, written warnings.
Take all of the above to your first meeting with your lawyer.
Source: Employment Relations Authority
