Sample problem-solving procedure in an employment agreement
The written employment agreement between an employer and an employee must include a problem-solving procedure. Such a procedure might be:
If our employment relationship is to be as successful as possible, it is important that we deal effectively with any problems that may arise.
This procedure sets out information on how problems can be raised and worked through.
What is an employment relationship problem?
It can be anything that harms or may harm our employment relationship, other than problems with the fixing of new terms and conditions of employment.
Clarify the problem
If either of us feels that there may be a problem in our employment relationship, the first step is to check the facts and make sure there really is a problem, and not simply a misunderstanding.
You may want to discuss a situation with someone else to clarify whether a problem exists, but in doing so you should take care to respect the privacy of other employees and managers, and to protect confidential information belonging to the employer.
For example, you could seek information from:
- friends and family
- the Department of Labour Contact Centre free on 0800 20 90 20
- pamphlets/fact sheets from the Department of Labour
- your union, a lawyer, a community law centre or an employment relations consultant.
Discuss the problem
If either of us believes there is a problem, it should be raised as soon as possible.
This can be done in writing or orally. Provided you feel comfortable doing so, you should ordinarily raise the problem with your direct manager. Otherwise, the problem can be raised with another appropriate manager. A meeting will usually then be arranged where the problem can be discussed. You should feel free to bring a support person with you to the meeting if you wish. We will then try to establish the facts of the problem and discuss the possible solutions.
The next steps
If we are not able to resolve the problem by talking to each other, we each have a number of options:
- We can contact the Department of Labour Contract Centre free on 0800 20 90 20, which can provide information and/or refer us to mediation.
- We can use the mediation services provided by the Department of Labour (or we can agree to get our own mediator). Mediation will normally be confidential.
- If we reach agreement, a mediator provided by the Department of Labour can sign the agreed settlement, which will be binding on us.
- We can both agree to have a mediator provided by the Department of Labour make a written recommendation to resolve our problem. Should we accept that recommendation, it will become binding on us both.
- We can both agree to have the mediator provided by the Department of Labour decide our problem for us, in which case that decision will be binding on us.
- If mediation does not resolve the problem, either of us can refer the problem to the Employment Relations Authority for investigation.
- The Authority can direct us to mediation, or can investigate the problem and issue a determination. The Authority can also make a recommendation which, if we accept, will be treated as the Authority’s determination of the matter.
- If either of us is not happy with the Authority’s determination, we can refer the problem to the Employment Court. (The Court may also tell us to go back and have more mediation.)
- In limited cases, there is a right to appeal the decision of the Employment Court to the Court of Appeal.
If the problem is a personal grievance, then you must raise it within 90 days of when the incidents that gave rise to the grievance occurred or came to your attention.
A personal grievance can only be raised outside this time frame with the agreement of the employer, or in exceptional circumstances.
If you are given notice of dismissal before the end of an agreed 90 day trial period you cannot raise a personal grievance on the grounds of unjustified dismissal. You may, however, raise a personal grievance on other grounds, such as discrimination or harassment or an unjustified action by the employer that disadvantaged you.