| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2016] NZERA Wellington 135 |
| Hearing date | 1 Mar 2016 - 3 Mar 2016 (3 days) |
| Determination date | 07 November 2016 |
| Member | Michele Ryan |
| Representation | G Dewar ; L Brown |
| Location | Napier |
| Parties | McDermott v Prestige Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – PRACTICE AND PROCEDURE – Privilege – Whether privilege attaches to emails between applicant and lay advocate - UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL – Dismissal – Applicant claimed unjustifiably dismissed by use of private email – Applicant claimed unjustifiably dismissed by respondent – Quality Assessor |
| Abstract | AUTHORITY FOUND –RAISING PERSONAL GRIEVANCE: Applicant did not raise personal grievance about failure to provide safe workplace regarding depot accommodation until 6 months later. Grievance not raised within 90 days.PRACTICE AND PROCEDURE: Privilege does not extend to communications between person and lay applicant in forum outside confines of proceedings before Authority or Court.UNJUSTIFIED DISADVANTAGE – UNJUSTIFIED DISMISSAL: Respondent’s use of email not breach of confidence. Email revealed possible breach of good faith by applicant so respondent within rights to make inquiries. No unjustified disadvantage. Resignation not made in heat of moment. Respondent not able to rely on notice of resignation as cause for termination of employment as respondent had advised it would defer acceptance of resignation. Respondent actually dismissed applicant. Dismissal unjustified. REMEDIES: No contributory conduct. Respondent to pay applicant $11,158 reimbursement of lost wages. $3,000 compensation appropriate. |
| Result | Application granted (unjustified dismissal) ; Reimbursement of lost wages ( $11,158.64) ; Compensation for humiliation etc ($3,000) ; Applications dismissed (raising personal grievance)(practice and procedure)(unjustified disadvantage) ; Costs reserved |
| Main Category | Personal Grievance |
| Statutes | ERA s114(1) ; ERA s114(3) ; ERA s114(4) ; ERA s128(2) ; ERA s148 ; ERA Second Schedule cl3 ; Evidence Act 2006 s51(1) ; Evidence Act 2006 s56 ; Evidence Act 2006 s56 ; Lawyers and Conveyancers Act 2006 s6 |
| Cases Cited | Austin v Silver Fern Farms Ltd [2014] NZEmpC 30 ; Boobyer v Good Health Wanganui Ltd EmpC Wellington WEC3/94, 24 February 1994 ; Dormer v Hanger Company Ltd [2003] 2 ERNZ 89 (EmpC) ; Hunt v A [2007] NZCA 332 ; Priest v Prestidge Ltd [2016] NZERA Wellington 134 |
| Number of Pages | 15 |
| PDF File Link: | 2016_NZERA_Wellington_135.pdf [pdf 397 KB] |