| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 371 |
| Hearing date | 8 Aug 2012 |
| Determination date | 16 October 2012 |
| Member | R A Monaghan |
| Representation | L Harris (in person), R Te Rini (in person) ; E Burke |
| Location | Rotorua |
| Parties | Harris and Anor v Kawerau Social Services Trust Board |
| Other Parties | Te Rini |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievances raised within 90 days – Applicants sought leave to raise grievances out of time – Authority found applicants’ representative’s (“D”) letter to respondent did not contain sufficient information to amount to raising of grievance – Found grievances not raised within 90 days – Found D failed to do what instructed and expected to do and failed unreasonably to ensure applicants’ grievances raised within 90 days – Found not reasonable to expect applicants to prompt D to forward letters in time and applicants entitled to assume D would act as instructed – Found delay in raising grievances occasioned by exceptional circumstances – Found substantial and inadequately explained delay in pursuing grievances after applicants ended association with D – Found respondent’s chairman had passed away in intervening period and evidence would have been critical to respondent’s response to grievances – Found prejudice caused to respondent by delays in matter outweighed considerations relevant to merits of grievances – Found not just to grant leave – Leave to raise grievances out of time declined |
| Abstract | Applicants claimed unjustifiably disadvantaged by respondent’s suspension of applicants and unjustifiably dismissed by respondent. Respondent claimed grievances not raised within 90 days. Applicants sought leave to raise grievances out of time if grievances not raised within 90 days. Applicants obtained assistance from union organiser (“D”) and provided material to D including draft personal grievance letters. D considered letters needed redrafting and applicants believed D would attend to this and forward new letters to respondent. D instead sent standard form letter to respondent claiming applicants’ dismissals substantively and procedurally unfair. D’s letter did not mention applicants’ suspensions. Respondent replied asking for grounds on which assertions of unjustified dismissals based but D did not reply. Applicants made several enquiries of D regarding progress with grievances but no reply received until seven months after D’s letters sent. Nine months later D asked respondent to make contact. Respondent claimed no grievance raised within 90 days but response not conveyed to applicants who believed mediation being arranged. Eight months later D acknowledged matter not referred to mediation and applicants sought assistance elsewhere. Statement of problem lodged in Authority seven months later.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: D’s letters to respondent did not contain sufficient information to amount to raising of grievance, even if surrounding circumstances considered. Grievances not raised within 90 days. D failed to do what instructed and expected to do and failed unreasonably to ensure applicants’ grievances raised within 90 days. No doubt what D instructed to do and not reasonable to expect applicants to prompt D to forward letters in time. Matters progressed to point applicants entitled to assume D would act as instructed. Delay in raising grievances occasioned by exceptional circumstances. Substantial and inadequately explained delay in pursuing grievances after applicants ended association with D. Respondent’s chairman had passed away in intervening period and evidence would have been critical to respondent’s response to grievances. Strong likelihood of finding of significant levels of contributory fault by applicants substantially reducing monetary remedies available if applicants successful. Prejudice caused to respondent by delays in matter outweighed considerations relevant to merits of grievances. Not just to grant leave. Leave to raise grievances out of time declined. |
| Result | Applications dismissed; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114(1);ERA s114(3);ERA s114(4);ERA s115;ERA s115(b) |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;McMillan v Waikanae Holdings (Gisborne) Ltd (trading as McCannics) (2005) 2 NZELR 402;Melville v Air New Zealand Ltd (2010) 8 NZELR 190;Melville v Air New Zealand Ltd (2011) 9 NZELC 93,700 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Auckland_371.pdf [pdf 179 KB] |