Employers Take Note – Be Careful When Accepting Mediation
The Employment Relations Authority has granted an employee leave to raise and pursue personal grievance outside of the 90 days. The determination is interesting because even though a personal grievance had not been expressly raised, the Authority found that the employer had impliedly consented to it having been raised when it attended and engaged in mediation in an attempt to resolve the issues which had been raised (employments issues were raised, with sufficient specificity, by the employee within the 90 day timeframe via a letter however the letter did not expressly raise a personal grievance). Employers must therefore take care when agreeing to mediation if there is any question about whether the employee has raised a grievance and done so within the 90-day timeframe. If there is any such issue, an employer agreeing to mediation should expressly state its agreement is not consent for the personal grievance being raised, although this is a riskier approach. If in doubt, seek legal advice.
The case also highlights the benefits of engaging an employment lawyer rather than an employment advocate. The Employment Relations Authority found that the employee had made reasonable arrangement to have his personal grievances within the 90 day period but the two advocates representing him at different times had unreasonably failed to do so on his behalf.