Personal Grievance for Redundancy: When a Restructure Was Not Genuine
A redundancy is a dismissal, and it can be challenged on two grounds: it was not genuine, or the process was unfair. The test is section 103A, the clock is 90 days from the action, and since 21 February 2026 an employee on $200,000 or more cannot bring the claim at all unless the agreement opts back in. This guide is the law; whether your case meets it is a question for a lawyer.
Two ways a redundancy fails
A redundancy is a dismissal, and section 103(1)(a) of the Employment Relations Act 2000 lets an employee raise a personal grievance for a dismissal that was unjustified. There are two ways a redundancy dismissal fails that test. The first is substance: the redundancy was not genuine, because the role still exists under another name, a replacement is hired into the same work, or the real reason was performance or a personality clash dressed up as a restructure. The second is process: the consultation described in the first guide of this series did not happen, or happened in form only.
The test for both is section 103A. Whether a dismissal was justifiable is decided on an objective basis, by asking whether the employer's actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances at the time. The Authority or the court must consider whether the employer sufficiently investigated, raised its concerns with you, gave you a reasonable opportunity to respond, and genuinely considered your explanation. Since 21 February 2026 it must also consider whether you obstructed the employer from doing any of those things.
Section 103A(5) is the part that catches people out. A dismissal must not be found unjustified solely because of defects in the process if those defects did not result in you being treated unfairly. So a late document or a short window is not a grievance by itself. A short window that stopped you raising an alternative the employer then never considered is a different matter, because the defect changed the outcome.
Whether a particular restructure meets the section 103A test is a judgement about facts, and this page cannot make it. A union, an employment lawyer or a Community Law centre can. What this page can do is make sure you know the clock and the test before you decide whether to ask.
The 90 day clock
Section 114 requires a personal grievance to be raised with the employer within 90 days beginning with the date of the action or the date it came to your notice, whichever is later. For a redundancy the action is usually the dismissal, but a grievance about the process can arise earlier, from the decision itself. The safe reading is to count from the earliest date and treat the 90 days as the deadline for everything.
Raising a grievance is less formal than it sounds. Under section 114(2), a grievance is raised as soon as you have made, or have taken reasonable steps to make, the employer or its representative aware that you allege a personal grievance that you want addressed. An email that says you consider the redundancy unjustified, why, and that you want it addressed, is enough. It does not need a lawyer, a form, or the Authority.
If the 90 days pass, the employer can consent to a late grievance, and if it does not, you can apply to the Employment Relations Authority for leave under section 114(3). Leave is granted only where the delay was caused by exceptional circumstances and the Authority considers it just, and section 115 lists what counts, so this is not a route to plan around. Once a grievance is raised in time, section 114(6) gives three years to start proceedings, and mediation through Employment New Zealand normally comes before the Authority does.
This guide is step six of fourteen on purpose. The checklist, the stand-down and the tax all come after it, because those steps take weeks and the 90 days keep running through every one of them.
What the remedies are
Section 123 lists what the Authority or the court can order if a grievance succeeds: reinstatement in the same or a similar position, reimbursement of lost wages or other money, and compensation, including for humiliation, loss of dignity and injury to feelings under section 123(1)(c)(i), and for the loss of any benefit you could reasonably have expected. The Authority can also make recommendations to the employer about its practices. Reinstatement after a restructure is uncommon in practice because the role has usually gone; lost wages and compensation are the usual remedies, and their size depends on the case.
Since 21 February 2026 the remedies have limits that did not exist before. Under section 123B, no remedy at all is available if an action of yours contributed to the situation that gave rise to the grievance and that action amounts to serious misconduct. Under section 123C, reinstatement and compensation are not available if any action of yours contributed to the situation, even without serious misconduct, and section 124 now allows the remaining remedies to be reduced by up to 100 percent for contributing behaviour. In a genuine restructure the employee's conduct is rarely the issue, but the sections apply to every grievance.
A settlement is the other way a grievance ends. Many are resolved at mediation, in a record of settlement that is signed off by a mediator and is then full and final. The negotiation guide in this series covers what a settlement can contain and why the tax treatment of the parts matters. Do not sign one without advice; it closes the grievance for good.
| Remedy | Section | Availability after 21 February 2026 |
|---|---|---|
| Reinstatement | 123(1)(a) | Not available if any action of yours contributed to the situation (s 123C) |
| Lost wages or other money | 123(1)(b) | Available, but can be reduced by up to 100 percent for contributing behaviour (s 124) |
| Compensation for humiliation and loss of benefit | 123(1)(c) | Not available if any action of yours contributed to the situation (s 123C) |
| Any remedy | 123B | None if your contributing action amounts to serious misconduct |
What changed in 2026: the $200,000 threshold
The Employment Relations Amendment Act 2026 came into force on 21 February 2026 and added sections 113A and 113B. If you are dismissed while your annual remuneration meets or exceeds the specified remuneration threshold, which is $200,000, you cannot bring a personal grievance for unjustified dismissal, or for unjustified disadvantage where the disadvantage relates to the dismissal. Grievances on the other grounds in section 103, such as discrimination or harassment, are unaffected. Annual remuneration is worked out under section 67I(4) from the pay you actually received in the 364 days before the pay period in which you were told of the dismissal, including PAYE income and employee share scheme benefits.
Two things soften it. Under section 67J, you and your employer can agree in writing, as a term of your employment, that sections 67I and 113A do not apply, so an agreement can opt you back in. And Schedule 1AA clause 28 gives a transition: if you were already in your position on 21 February 2026, or moved to a different position with the same employer or another employer as a result of a restructuring, section 67I does not apply to you for as long as that remains true or for twelve months from that date, whichever ends first.
There is a second effect of the threshold that matters in a restructure. Section 67I(2) says that when an employer is deciding whether to terminate the employment of someone at or above the threshold, it is not required to comply with section 4(1A)(c), the consultation obligation described in the first guide. The threshold is indexed: section 113B raises it each year in line with the movement in average ordinary weekly earnings in the Quarterly Employment Survey, with the new amount taking effect on 1 July and published beforehand, so the first change can land on 1 July 2027.
If you are near the threshold
Read your agreement for a section 67J opt-in, check the transitional twelve months if you were in your role before 21 February 2026, and get advice before the notice period ends. The remuneration calculation uses actual pay over 364 days, so a bonus year can push you over.
Related guides and tools
- Restructuring Consultation, what the process must include, which is what a grievance is measured against
- Negotiating Your Redundancy, what a settlement can contain and why the tax treatment of the parts matters
- Employment Settlements and Tax, how compensation for humiliation and wages in lieu are taxed differently
- Redundancy Pay and What To Do Next, the wider picture once the grievance question is settled
Test Your Knowledge
Ten questions on the two grounds, the 90 day clock, the remedies, and the $200,000 threshold introduced in 2026.
Sources: Employment Relations Act 2000 sections 103, 103A, 113A, 113B, 114, 123, 123B, 123C and 124, and Schedule 1AA Part 9, as amended by the Employment Relations Amendment Act 2026 (2026 No 4), read on legislation.govt.nz on 3 September 2026; Employment New Zealand, redundancy, last updated 26 November 2025.