I have helped many employers address performance and discipline issues with employees. Often the result is the employee resigning. In many instances there may have been other underlying issues that while not resulting in performance or disciplinary action may see an employee resigning. So, once an employee resigns, is it the end of the matter?
Often it is not. Employees are more litigious these days and a disgruntled employee will lodge a personal grievance often claiming constructive dismissal. Can you prepare for this and if so, what should you do?
Yes you should and it is relatively simple. If the parting was on anything less than good terms, act as if you are going to receive a grievance claiming constructive dismissal. If you have not already done so, put to paper every conversation you can recall noting the date and time and importantly what was actually said, not what your perception was.
The employee has 90 days – not 90 working days, 90 calendar days – from when they first become aware of an issue to lodge a grievance. If you are able to pinpoint this date, then start a countdown from this date, if not, then start a 90-day countdown from the date you received the resignation. If you have any doubt, start from when the resignation was received because this will be the longer period. From here one of three scenarios can arise:
- You won’t receive a grievance – good, no problem.
- You receive a grievance – Not unexpected.
- You receive a grievance after the 90-day limit has ended.
So, the second scenario is the one we need to manage and this is what you should do:
- Put together a file immediately on receiving the resignation containing every document you have on the individual. Make sure you commit to paper any discussions you can recall about the issue noting date and time. The file should contain the signed employment agreement, , policies, payslips, leave records, performance and disciplinary records if there are any, any warnings etc, you get the picture.
- Seek professional support as soon as you get the grievance. A reputable HR specialist will be able to guide you through the process and will advise you of exactly where you stand legally and the strength of your case and can prepare all the documentation needed.
- Don’t panic about the financial remedies asked for in the grievance. They will ask for everything and often accept a fraction of what is asked, and in many cases nothing is paid out.
The third scenario is not so much of an issue as you are not legally obligated to consider any grievance received after the 90-day period is up, in short you can reject it. to have it considered, the employee needs to gain permission of the Employment Relation Authority and they must show that a special case exists.
In summary, always anticipate receiving a grievance if the relationship did not end well. Gather the documentation, gain professional support and relax. It is a situation that if managed correctly is more of an annoyance.