| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 393 |
| Hearing date | 18 Oct 2012 |
| Determination date | 12 November 2012 |
| Member | E Robinson |
| Representation | S Kanta (in person) ; L Turner |
| Location | Auckland |
| Parties | Kanta v Griffin's Foods Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant sought leave to raise grievance out of time – Authority found no evidence applicant raised grievance at meeting where applicant dismissed – Found applicant’s claim raised grievance at meeting inconsistent with subsequent request to union organiser (“W”) to raise grievance, request to speak to lawyer before going overseas as 90 day period would expire before applicant returned, and W’s evidence applicant never stated had raised grievance during meeting – Found even if applicant stated was “raising a personal grievance” at meeting, words not sufficient to raise grievance – Found grievance not raised within 90 days – Found W’s claim not instructed by applicant to raise grievance supported by evidence – Found W conveyed conclusion no grounds for raising grievance to applicant in timely manner and not credible W would not have acted promptly in respect of applicant’s grievance if believed grounds to support grievance given applicant called W persistently – Found W did not fail unreasonably to ensure grievance raised within 90 days – Leave to raise grievance out of time declined – Machine operator |
| Abstract | Applicant employed by respondent as machine operator. Applicant claimed unjustifiably dismissed by respondent. Respondent claimed applicant’s grievance not raised within 90 days. Applicant sought leave to raise grievance out of time. Respondent denied applicant raised grievance at meeting where applicant dismissed (“meeting”). Applicant contacted union organiser (“W”) and asked W to raise grievance on applicant’s behalf. W claimed spoke to respondent, concluded no grounds to raise grievance and informed applicant union would not be pursuing case. Applicant claimed would not have continued to call W and union if told by W union would not be raising grievance. W claimed applicant unable to accept W’s opinion and W sought to arrange for applicant to meet union lawyer to obtain second opinion. Applicant claimed asked W if applicant could speak to lawyer before going overseas as 90 day period would expire before applicant returned. W denied told by applicant that applicant going overseas and claimed did not hear from applicant for three months. Applicant instructed law firm (“I”) and claimed told I had raised grievance at meeting. On same day I sought respondent’s consent to raise grievance out of time. Two weeks later I stated had been informed applicant had raised grievance at meeting and I instructed to file grievance in Authority.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: No evidence given by union delegate acting as applicant’s support person at meeting or applicant’s doctor that applicant raised grievance at meeting despite applicant’s ability to call witnesses. No evidence in notes of meeting or applicant’s subsequent letter requesting copy of personnel file be provided to union delegate that applicant raised grievance at meeting. Applicant’s claim raised grievance at meeting inconsistent with subsequent request to W to raise grievance, request to speak to lawyer before going overseas as 90 day period would expire before applicant returned, and W’s evidence applicant never stated had raised grievance during meeting. Applicant’s claim told I raised grievance at meeting inconsistent with I’s initial letter to respondent seeking extension of 90 day period and I’s second letter stating applicant had claimed to have raised grievance at meeting after first letter had been sent. Even if applicant stated was “raising a personal grievance” at meeting, words not sufficient to raise grievance. Grievance not raised within 90 days. W’s claim not instructed by applicant to raise grievance supported by evidence W told respondent did not consider grounds for grievance and W’s explanation union would not support claim unless convinced reasonable prospect of success. W conveyed conclusion to applicant in timely manner and not credible W would not have acted promptly in respect of applicant’s grievance if believed grounds to support grievance given applicant called W persistently. W did not fail unreasonably to ensure grievance raised within 90 days. Not just to grant leave to raise grievance out of time. Leave to raise grievance out of time declined. |
| Result | Application dismissed; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA;ERA s114;ERA s114(1);ERA s114(2);ERA s114(3);ERA s114(4);ERA s114(4)(b);ERA s115;ERA s115(b);ERA Second Schedule cl5 |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Creedy v Commissioner of Police [2008] ERNZ 109; [2008] 3 NZLR 7;Gibson v G F W Agri-Products Ltd [1994] 2 ERNZ 309;PBO Ltd (formerly Rush Security Ltd) v Da Cruz [2005] ERNZ 808;Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70;Winstone Wallboards Ltd v Samate [1993] 1 ERNZ 503 |
| Number of Pages | 15 |
| PDF File Link: | 2012_NZERA_Auckland_393.pdf [pdf 243 KB] |