| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 193 |
| Determination date | 03 September 2012 |
| Member | D Appleton |
| Representation | A Ogilvie ; R Gibson |
| Location | Christchurch |
| Parties | Smith v Heinz Wattie's Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Applicant sought leave to raise grievance out of time - Applicant gave credible reason why did not raise grievance immediately after dismissal - Authority found applicant entitled to assume advocate would raise grievance as instructed - Found exceptional circumstances justified delay in raising grievance - Found applicant’s unjustified disadvantage claim alternative to applicant’s unjustified dismissal rather than distinct additional claim - Found just to grant leave - Leave to raise personal grievances out of time granted |
| Abstract | Applicant sought leave to raise grievances out of time. Applicant claimed unjustifiably dismissed and unjustifiably disadvantaged by respondent’s actions. Respondent did not consent to grievances being raised out of time. Applicant claimed told position no longer available and contacted lawyer (“G”) to discuss matter. Applicant claimed G recommended applicant not commence grievance process as applicant intended to apply for re-employment with respondent for new season. Applicant claimed once advised would not be re-employed, instructed G to commence grievance process. Applicant claimed heard nothing more from G but thought process was underway. Applicant contacted G four months later to ask about progress. G claimed had given applicant’s file to another lawyer (“O”). O claimed had only just been contacted by G about matter. G claimed due to illness and family matters had passed on some matters to O and mistakenly had not given O applicant’s file. Respondent claimed applicant’s unjustified disadvantage claim arose from alleged action separate from applicant’s unjustified dismissal grievance and unjustified disadvantage claim raised outside 90 day period.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Applicant instructed G to raise grievance 82 days from dismissal. Applicant gave credible reason, applying for re-employment for next season, why did not raise grievance immediately after dismissal. Applicant entitled to assume G would raise grievance as instructed. Not unreasonable for applicant not to have checked on claim’s progress for four months. Exceptional circumstances justified delay in raising grievance. Applicant’s unjustified disadvantage claim alternative to applicant’s unjustified dismissal rather than distinct additional claim. Just to grant leave. Leave to raise personal grievances out of time granted. |
| Result | Application granted ; Costs reserved |
| Main Category | Raising PG |
| Statutes | Accident Compensation Act 2001 s80;ERA s114;ERA s114(1);ERA s114(3);ERA s114(4);ERA s115;ERA s115(b) |
| Cases Cited | Melville v Air New Zealand Ltd (2011) 9 NZELC 93,700;Peck v Retail Franchising (Palmerston North) Ltd unreported, G Wood, 29 October 1993, WT141/93 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Christchurch_193.pdf [pdf 228 KB] |