Complaining about a colleague is not the same as raising a grievance, an employee learned
An employee who complained about a colleague cannot later recast it as a grievance against his employer, Judge Kathryn Beck ruled on 3 July 2026.
The Employment Court was asked whether a former clinical team coordinator at Health New Zealand (Te Whatu Ora) raised three personal grievances within the 90 days required by section 114 of the Employment Relations Act 2000. The case was heard on the papers after the Employment Relations Authority found the grievances had not been validly raised in time.
The employee was dismissed for serious misconduct on 4 July 2024. Before that, in September 2023, he complained that a colleague had accessed his daughter's files in breach of the agency's privacy and confidentiality policies. He raised it with the colleague's manager, not with his own.
He later claimed the colleague called the police and used racially discriminatory language toward him. He also alleged the agency failed to protect him and his family, and that he had been bullied and his complaints ignored. Health NZ accepted he raised some grievances in time but disputed these three, saying they surfaced for the first time in an amended statement of problem filed in July 2024.
Judge Beck examined the communications said to have raised the grievances. She found the September complaint centred on the colleague's conduct, not on any action or omission by the employer. What the employee intended, she said, was beside the point: "it does not matter what the employee intended their complaint to be".
The employee had withdrawn the complaint in October 2023. Judge Beck said the 90-day window exists so an employer can address issues promptly, and that reviving a withdrawn complaint months later cut against that purpose.
On the racial language allegation, the Court noted the September email said nothing about racial slurs, and that meeting notes from December 2023 recorded the employee describing the incident without mentioning discrimination. The judge also found this was an interpersonal conflict between colleagues, with the colleague a subordinate acting in her personal capacity rather than for the employer.
On bullying, Judge Beck accepted the employee had clearly raised a grievance about his suspension and how the suspension meeting was run, which Health NZ acknowledged was in time. But she found nothing in the meeting notes raised bullying or a failure to address earlier complaints, adding: "There is no suggestion that Te Whatu Ora failed him in any way."
Having reviewed the totality of the correspondence, Judge Beck found the employee had not raised the three grievances within the 90 days prescribed by section 114(1). Costs were reserved, with the agency given 14 days to file any memorandum should the parties fail to agree.
