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Employment Relations Act 2000

Personal grievances, disputes, and enforcement - Personal grievances

119: Presumption in discrimination cases

You could also call this:

“If a worker shows their boss did something unfair because of their union activities, the boss has to prove they didn't do it on purpose.”

If you’re an employee and you think your employer has discriminated against you, here’s what you need to know:

You need to show that your employer or their representative did something or didn’t do something that’s described in section 104(1) of this law. This could be about hiring, firing, training, or other work-related things.

If you say the discrimination was because of your union membership or union activities, you also need to show that you fit the description in section 107 of this law.

If you can show these things, the law assumes that your employer did discriminate against you for the reasons you said. However, your employer can try to prove that they didn’t discriminate against you.

This means that once you’ve shown these things, it’s up to your employer to prove they didn’t discriminate against you, rather than you having to prove that they did.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM60359.

Topics:
Work and jobs > Worker rights
Rights and equality > Anti-discrimination
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118: Sexual or racial harassment after steps not taken to prevent repetition, or

“If someone keeps bothering you at work after you've complained, and your boss doesn't try to stop it, it's like your boss is doing the bad thing.”

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120: Statement of reasons for dismissal, or

“You can ask your boss to explain why you were fired, and they must tell you in writing.”

Part 9 Personal grievances, disputes, and enforcement
Personal grievances

119Presumption in discrimination cases

  1. Subsection (2) applies if, in any matter before the Authority or the court,—

  2. the employee establishes that the employer or the employer's representative took any action or omitted any action as described in any of paragraphs (a) to (c) of section 104(1) in relation to that employee; and
    1. if it is a case where the employee alleges that the discrimination was by reason directly or indirectly of the employee's union membership status or involvement in union activities, the employee establishes that he or she was a person described in section 107.

      1. If this subsection applies, there is a rebuttable presumption that the employer or representative of the employer discriminated against the employee on the grounds, or for the reason, specified in section 104(1) and alleged by the employee.

      Notes
      • Section 119(1)(b): amended, on , by section 34 of the Employment Relations Amendment Act 2018 (2018 No 53).