Odds stacked in personal grievance cases
DOMINION POST - Saturday 3 March 2012
The odds are often stacked against employees who pursue a personal grievance - and litigation can derail careers, reports Tom Pullar-Strecker
So you're thinking of taking a personal grievance?
Then think very carefully. It makes no difference whether you win or lose, prospective employers are likely to hold it against you, says employment lawyer Peter Cullen. And the more senior you are, the longer the black mark will stick.
Wellington model-maker James Bryson says the chances of him getting any job in the film industry are "nil" after he fought United States-owned Lord of the Rings production company Three Foot Six, accusing a manager of bullying and creating a toxic work environment.
His became a landmark case as Three Foot Six went all the way to the Supreme Court to claim, unsuccessfully, that Bryson was a contractor and not an employee. His grievance was then sent back down to the Employment Tribunal and settled after mediation in 2006.
"I didn't end up losing money but there was really nothing the legal process could have given me at that point that would have compensated me for everything I'd been through," Bryson says. "Most people only go through this once before they find out how horrible the process is."
He admits he had no idea of what he was getting into and says he only took the personal grievance because the manager wouldn't let matters between them drop.
"I was completely naive. I thought, let's put the issues in front of a court and get it to look at them objectively and no-one will be angry with anyone else. The irony is I wouldn't wish employee status on anyone."
Instead, Bryson says his "name is mud throughout the entire industry at every single level. I had a legitimate grievance but that doesn't count for anything unfortunately. It's illegal to blacklist people in New Zealand, but the chances of me working in the industry again are zero".
A small comfort was that Bryson did not find his "PG" an issue outside the film industry, about which he is now deeply cynical. "I worked in an office job for five years after that and it never raised its head."
Hawke's Bay secretary Deborah Houston found herself with few options after she blew the whistle to the chairman of the Hawke's Bay District Health Board about an alleged conflict of interest for another board member, only to be restructured out of her job soon afterwards.
She also settled her PG, but decided to drop out of the work force later, after a heart attack, which she attributes to the stress.
"My career was ended, which was a bit sad as I think I did have a few more years. I did have a couple of low-paid positions subsequently but it did affect me, no doubt about that. My jobs have mainly been in the public service and I do believe management view things a bit differently to how they did in the `old days'. It is more partisan and employers do take things personally and tend to scapegoat.
"I wouldn't be too happy about taking a personal grievance in this climate. It's easy enough for employers to retaliate, isn't it?"
Houston says she settled for getting her legal fees paid after the case dragged on and the financial stakes became too high. She recommends people consider representing themselves if taking a PG. "I was over a barrel," she said.
Another whistleblower who assisted The Dominion Post with a high-profile investigation warns that public service organisations have access to bottomless legal assistance and argues they should be held to account for the bills they run up defending claims, not just their settlements and payouts.
"I think there could have been a better outcome for me," Houston says. "Not necessarily financial, but a decree that I had been very badly treated, which, of course, I still believe to this day.
"I know a lot of people think it's very easy to take personal grievances and get compensation from the Employment Relations Authority but I do really think it is stacked against the employee. It is a very hard row to hoe."
Lower Hutt clinical psychologist Jane Dyne agrees, having treated several people who struggled with the toll of taking personal grievance cases.
Dyne says "letting it go" may not always be the right decision for some people, "but it often seems to me personally, is it worth the bother?"
"How it works out may not be how people expect it to, and that can be very distressing."
The most stressful aspect for many of her clients was dealing with delays in the legal process "which can be very upsetting".
Houston's and Bryson's cases were "causes celebres", but Cullen says employees who pursue grievances can't generally be expected to be rewarded for their sense of justice when looking for new jobs.
"It is not normally what people look for. You are not employing them to fight Pol Pot."
Many do go through the process without regrets, he says. "People survive. They mightn't be as employable, but they can set up their own business or work as contractors."
However, Houston believes there needs to be better protection for whistleblowers under the Protected Disclosure Act "because if there is retaliation, the only redress you have is through employment law, and my husband and I don't believe it offered any protection whatsoever really."
Bryson suggests the Labour Department's inspectorate should have more teeth. "If they were able to take information from both sides and make a ruling based on fact, that would be much more beneficial to both sides because you wouldn't get this adversarial environment building up."
Instead, the thrust of changes made to employment law last year has been to raise the bar and the stakes for aggrieved workers.
New wording makes it easier for employers to claim sackings or disciplinary measures are fair and reasonable and allows the court to take into account employers' resources when deciding whether they have followed acceptable processes.
Employees must also have been with their employer for more than 90 days to raise a grievance. Labour Minister Kate Wilkinson said in 2010 she was concerned "frivolous" cases were being taken to the ERA.
Cullen says there is nothing particularly risky about seeking legal advice on employment issues. Indeed, he says it is good to get advice early. "Often a good employment lawyer can work out a strategy to manage problems you have."
But people should know they cross a Rubicon as soon as they ask a lawyer to write a letter to their employer, and litigation will have a "massive" impact on their ability to get future employment.
"When people are employing someone, they want people who will be part of a team and be easy to get on with.
"In one sense, it is not fair, because if the law is there, people are entitled to use it. But that is not really the judgment you are exercising before you employ someone – you are asking, 'What sort of human being am I getting, would I trust them and will they get on with me?"'
Settling personal grievance case
Each year a few hundred personal grievance cases are lodged with the Employment Relations Authority, about half of which are settled in favour of employees.
Filing a complaint is comparatively straightforward. Forms are available online from the authority's website and there is a $71.56 filing fee.
After inviting the employer to respond and an initial phone conference, the ERA is likely to insist on mediation.
If that fails, the ERA will invite the parties to a hearing to give evidence, usually under oath. The hearing is free as long as that lasts no more than a day, after which a $153.33 fee applies per half day. The authority will then issue a written determination, which Is published online and legally binding. If either party is not happy with the determination they can dispute it by going to the Employment Court.
Lawyer Peter Cullen says about 90 per cent of cases are settled before a hearing. "Your future employability is far less affected if you had a dispute, went to mediation and had a confidential settlement."