| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2012] NZERA Auckland 464 |
| Determination date | 18 December 2012 |
| Member | K J Anderson |
| Representation | M Ryan ; A Russell |
| Parties | Dunn v Waitemata District Health Board |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Authority found grievance not raised by letter as open to applicant to make further submissions, letter set pre-conditions to be met before unjustified dismissal claim lodged in Authority and unjustified dismissal grievance could not be raised before applicant dismissed – Found grievance not raised within 90 days |
| Abstract | Applicant claimed unjustifiably dismissed by respondent. Respondent claimed grievance not raised within 90 days. After applicant absent on sick leave for five months, respondent sought clarification of applicant’s intentions regarding employment and in second letter advised would look to dismiss applicant if no response received. Applicant’s representative (“R”) advised return to work possible but conditional on respondent removing barriers to return. Respondent sought clarification twice as to what required to do to facilitate applicant’s return to work and when no response received gave applicant notice of dismissal. Respondent stated willing to review decision if required information supplied before dismissal date. R wrote to respondent (“letter”) stating decision to dismiss applicant premature and unjustified in circumstances. Letter stated if respondent failed to identify practical steps to enable applicant to return to work and if respondent dismissed applicant grievance would be lodged in Authority. In further correspondence respondent reiterated willing to consider suggestions for resolution of employment issues. Applicant dismissed. Applicant claimed grievance raised in letter read in combination with other communications between parties. Applicant claimed respondent participated in mediation subsequently and could not claim grievance not raised. Respondent claimed grievance not raised in letter as any claim of unjustified dismissal subject to two conditions being met, respondent willing to review decision prior to dismissal and grievance could not be raised before dismissal actually occurred. Respondent claimed required to attend mediation by Authority.;AUTHORITY FOUND –;RAISING PERSONAL GRIEVANCE: Respondent’s compliance with Authority’s direction to attend mediation could not be seen as waiver of entitlement to claim no proper foundation for grievance. Grievance not raised by letter as open to applicant to make further submissions, letter set pre-conditions to be met before unjustified dismissal claim lodged in Authority and unjustified dismissal grievance could not be raised before applicant dismissed. Grievance not raised within 90 days. |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA;ERA s103(1)(a);ERA s114;ERA s114(1);ERA s120;ERA s159 |
| Cases Cited | Board of Trustees of Te Kura Kaupapa Motuhake O Tawhiuau v Edmonds [2008] ERNZ 139;Creedy v Commissioner of Police [2006] ERNZ 517 |
| Number of Pages | 9 |
| PDF File Link: | 2012_NZERA_Auckland_464.pdf [pdf 171 KB] |