| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 409 |
| Determination date | 19 November 2012 |
| Member | E Robinson |
| Representation | M Beech ; C Patterson |
| Parties | Wonnocott v Vulcan Steel Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Authority found applicant aware that outcome of first meeting with respondent was written warning but respondent indicated that warning would be confirmed following day – Found applicant did not have prior knowledge of warning on day of parties’ meeting – Found applicant’s representative confirming had received respondent's email constituted knowledge by applicant of written warning – Found applicant did not raise grievance within 90 day period but respondent had impliedly consented to applicant raising personal grievance out of time - Application granted |
| Abstract | Applicant claimed unjustifiably disadvantaged by written warning issued by respondent. Parties disputed when applicant had knowledge of written warning and whether applicant raised grievance within 90 day period. Applicant claimed alternatively respondent had consented to applicant raising grievance out of time or sought leave to raise grievance out of time. Respondent investigated concerns applicant had met with employee (“X”) of respondent’s competitor. Respondent held meeting with applicant before concluding applicant had met with X and should be issued with written warning. On day respondent sent applicant email confirming written warning would be issued respondent’s representative (H") confirmed had received email. Applicant not home at time but aware respondent had sent email. Respondent claimed applicant had knowledge of warning on either day of disciplinary meeting or day sent email. Respondent requested further meeting to discuss unrelated disciplinary matter. Applicant’s representatives confirmed applicant would attend second meeting and noted written warning received inconsistent with what parties had discussed at first meeting. Applicant issued with second and final warning. Applicant claimed raised personal grievance relating to second warning. Respondent’s correspondence with applicant relating to second disciplinary matter did not refer to applicant raising first personal grievance out of time. Applicant dismissed.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Applicant aware that outcome of meeting was written warning but respondent indicated that warning would be confirmed following day. Conceivable respondent could have later decided not to issue applicant with written warning. Applicant did not have prior knowledge of warning on day of parties’ meeting. Authority accepted H acting as applicant’s agent in matter and H had duty to immediately forward respondent’s email to applicant. H confirming with respondent had received email constituted knowledge by applicant of warning. Applicant did not raise grievance within 90 day period. Respondent had impliedly consented to applicant raising personal grievance out of time. Application granted." |
| Result | Application granted ; Costs reserved |
| Main Category | Raising PG |
| Statutes | Commerce Act 1986;ERA s114(1);ERA s115(c) |
| Cases Cited | Commissioner of Police v Hawkins [2009] 3 NZLR 381;Creedy v Commissioner of Police [2006] ERNZ 517;Drayton v Foodstuffs (South Island) Ltd [1995] 2 ERNZ 523;Hawkins v Commissioner of Police [2007] ERNZ 762;Jacobsen Creative Surfaces Ltd v Findlater [1994] 1 ERNZ 35;Jessett Properties Ltd v UDC Finance Ltd [1992] 1 NZLR 138;McGrath v Freer (1892) 10 NZLR 688;New Zealand Fisheries Ltd v Napier City Council (1990) 1 NZ ConvC 342;Phillips v Net Tel Communications [2002] 2 ERNZ 340 |
| Number of Pages | 11 |
| PDF File Link: | 2012_NZERA_Auckland_409.pdf [pdf 208 KB] |