FAQ: Can I file a Personal Grievance while on ACC?

Getting to grips with being on ACC can be confusing, and sometimes it can also create issues with your employer. If you are on ACC and your relationship with your employer has broken down, you may be wondering whether you still have the right to raise a personal grievance (PG).

ACC, or the Accident Compensation Corporation, provides comprehensive no-fault personal injury coverage for all New Zealand citizens, residents and visitors. ACC supports New Zealand employees whose health provider has deemed them unable to work, and helps them plan to return to work once they are healthy again.

Being on ACC does not stop you from raising a personal grievance if your employer has treated you unfairly. However, your injury, your ability to work, and the ACC process can make these cases more complicated.

Many employees mistakenly believe that because ACC is paying them weekly compensation, they no longer have employment rights. That is not correct.  While you are on ACC, your employer must still meet their obligations under the Employment Relations Act 2000, including:

• acting in good faith,

• treating you fairly and reasonably,

• following a fair process before making important employment decisions,

• consulting with you where required, and

• considering medical evidence before making decisions about your employment.

Likewise, you still have obligations to keep your employer informed about your recovery and your expected return to work.

Why would I need to raise a PG while on ACC?

Unjustified Dismissal

One of the most common issues occurs when an employer dismisses an employee because they have been away on ACC.  While an employer can eventually terminate employment if an employee is medically unable to return to work, they cannot simply dismiss someone because they have been injured.  Before considering dismissal, a fair employer would usually:

• obtain up-to-date medical information

• understand your likely recovery timeframe

• consult with you

• consider whether your role can remain open

• explore alternative duties or reasonable adjustments where appropriate

• genuinely consider your feedback before making a decision.

If these steps are skipped, the dismissal may be unjustified.

Unjustified Disadvantage

Sometimes an employee is not dismissed but is treated unfairly because they are on ACC.  Examples include removing responsibilities without consultation, reducing hours without agreement, excluding you from workplace opportunities, refusing to communicate with you, changing your position while you are recovering, or pressuring you to resign.  These actions may amount to an unjustified disadvantage if they negatively affect your employment.

Discrimination

The Human Rights Act 1993 protects employees from discrimination on the basis of disability.  Depending on the circumstances, an injury that results in a disability may attract protection under the Act.  If an employer treats you less favourably because of your injury rather than your ability to perform the job, you may have grounds for a personal grievance.

Bullying or Harassment

Some injured employees experience bullying when they return to work.  Examples include managers questioning whether the injury is genuine, repeated criticism because you cannot work at full capacity, offensive comments about being on ACC, or isolation from your team.  Employers have a duty to provide a safe workplace and should address bullying promptly.

Constructive Dismissal

Sometimes an employee resigns because their employer's behaviour leaves them with little practical choice.  This may happen if an employer repeatedly pressures an employee to resign, refuses to support a return to work, ignores medical restrictions, or creates an intolerable working environment.  In some situations, this may amount to constructive dismissal.

Why Does Being on ACC Make A PG More Complicated?

Although being on ACC does not stop you raising a personal grievance, it can affect how your case is assessed.  

Medical evidence becomes very important if a PG is raised while on ACC.  Medical certificates, specialist reports and rehabilitation plans may become key evidence in your case and affect the outcome.  

Your employer may raise genuine business concerns regarding your future capacity to work.  Employers are not required to keep a position open forever.  If an employee cannot return to work for a prolonged period, an employer may eventually be able to legitimately terminate your employment.

ACC payments can also affect any compensation you receive as a result of your personal grievance.  If you raise a personal grievance, and it is successful, the Employment Relations Authority or Employment Court may award remedies such as reimbursement of lost wages, compensation for humiliation, loss of dignity and injury to feelings, reinstatement, and/or recommendations to the employer.

However, because ACC may already be paying weekly compensation for lost earnings, this can affect the amount of wage reimbursement available through an employment claim.  Employment remedies and ACC entitlements are different legal systems, and understanding how they interact can be complex.

Can My Employer Contact ACC?

Your employer cannot simply obtain your ACC information whenever they choose. In many situations, your employer will need your consent before obtaining detailed medical information from ACC or your treatment providers.  They may, however, request information that helps them understand your fitness for work, any work restrictions, likely return-to-work dates, and suitable duties you can take on when you return.

What Should I Do If I Think My Employer Has Treated Me Unfairly?

Where possible keep a record of any emails, letters and text messages pertaining to your employment and ACC situation.  In particular keep any medical certificates and ACC documents.  You should write down or otherwise record important conversations you have with your employer and follow any reasonable requests they make for information or to meet.  Ask questions if you do not understand what is happening, and seek advice from a legal expert before making any major decisions such as resigning.

You should consider getting advice if:

• your employer is talking about ending your employment,

• you are being pressured to return before you are medically ready,

• your employer ignores medical restrictions,

• you are being treated differently because you are injured,

• you are considering resigning,

• you have received a disciplinary letter while on ACC, or

• you are approaching the 90-day deadline for raising a personal grievance.

Early advice can help you understand your options before important decisions are made. If you believe your employer has treated you unfairly while you are on ACC, don't assume you have no rights. Employment law and ACC often overlap, and understanding how they work together can make a significant difference to your case.

At Mathews Walker, we help you understand your rights, assess whether you may have grounds for a personal grievance, and guide you through the process. If you are unsure where you stand, get in touch for a free consultation. MathewsWalker.co.nz | Employment Problems Solved | 0800 612 355

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