| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 265 |
| Determination date | 04 December 2012 |
| Member | D Appleton |
| Representation | L Asplet (in person) ; D Carruthers |
| Location | Christchurch |
| Parties | Asplet v Birchfield Minerals Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant sought leave to raise grievance out of time – Authority found applicant employed pursuant to contract describing applicant as contractor and reasonable not to raise grievance before Authority determined applicant employee – Found applicant’s statement to respondent did not make clear applicant raising grievance in respect of dismissal – Found grievance not raised within 90 days – Found ignorance or misunderstanding of law did not constitute exceptional circumstance – Found while parties’ contract did not contain plain language explanation of services available for resolution of employment relationship problems including reference to 90 day period for raising grievance required by s65 Employment Relations Act 2000, not just to grant leave to raise grievance out of time on that basis as clear both parties believed relationship one of principal and contractor – Leave to raise grievance out of time declined |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Respondent claimed grievance not raised within 90 days. Applicant sought leave to raise grievance out of time. Matter determined on papers. Applicant’s employment terminated and applicant’s claim for arrears of wages and respondent’s counterclaim filed in Disputes Tribunal as parties considered applicant independent contractor. Disputes Tribunal ordered applicant to file claim in Authority and Authority determined applicant employee. Four months later applicant sought leave to raise grievance out of time. Applicant claimed did not know entitled to make unjustified dismissal claim until Authority determined applicant employee. Applicant claimed raised grievance within 90 day period after previous Authority determination by making statement to respondent applicant should be compensated fairly for stress and financial loss incurred. Respondent claimed statement made in regard to respondent’s counterclaim rather than to raise grievance and applicant did not state had raised grievance in subsequent telephone conference. Applicant claimed believed mistakenly would have to prove innocence of theft allegations against applicant before could proceed with unjustified dismissal claim.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Applicant employed pursuant to contract describing applicant as contractor, only reasonable for applicant to consider had employment rights when referred to Authority by Disputes Tribunal and reasonable for applicant not to raise grievance before Authority determined applicant employee. Applicant’s statement to respondent did not make clear applicant raising grievance in respect of dismissal as not applicant’s intention in making statement. Grievance not raised within 90 days. Not clear what applicant speaking of when referring to theft allegations but applicant had misunderstanding of legal position and knew had right to bring unjustified dismissal claim when received previous Authority determination. Ignorance or misunderstanding of law did not constitute exceptional circumstance. While parties’ contract did not contain plain language explanation of services available for resolution of employment relationship problems including reference to 90 day period for raising grievance required by s65 Employment Relations Act 2000, not just to grant leave to raise grievance out of time on that basis as clear both parties believed relationship one of principal and contractor. Leave to raise grievance out of time declined. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s65;ERA s65(2)(a)(vi);ERA s114;ERA s114(2);ERA s114(4);ERA s115;ERA s115(c) |
| Cases Cited | Asplet v Birchfield Minerals Ltd [2012] NZERA Christchurch 135;Creedy v Commissioner of Police [2006] ERNZ 517 |
| Number of Pages | 7 |
| PDF File Link: | 2012_NZERA_Christchurch_265.pdf [pdf 222 KB] |