| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 230/07 |
| Hearing date | 2 Aug 2007 |
| Determination date | 02 August 2007 |
| Member | R A Monaghan |
| Representation | D Feist ; C Parkhill |
| Location | Auckland |
| Parties | Roberts v Commissioner of New Zealand Police |
| Summary | PRACTICE AND PROCEDURE – Respondent sought to strike out proceedings – Applicant claimed unjustifiably dismissed and disadvantaged in substantive proceedings – Authority heard matter separately from substantive at request of parties – Authority had previously determined applicant could not proceed with grievance as brought outside 3 year time limit in s114(6) ERA – Previous determination challenged in Employment Court – Court concluded proceedings brought within time limit and matter to now be decided on merits in Employment Tribunal (“Tribunal”) – By direction of Court under s252 ERA Chief of Authority appointed member to exercise jurisdiction of Tribunal – Respondent argued allegation that suspension unlawful raised out of time, without consent of employer and without leave of Tribunal – Tribunal found grievance based on suspension raised outside 90 day period and no application to submit grievance out of time – Pleadings struck out to extent related to justification for suspension – Applicant’s claim that unjustifiably dismissed based substantially on fairness of procedure of Police Disciplinary Tribunal (“PDT”) – Respondent sought orders striking out certain paragraphs in amended statement of claim – Respondent argued investigation into allegations contained in paragraphs 17(ii) and 17(iii) of statement of claim would undermine findings and decision of Tribunal to extent related to Tribunal hearing – Argued further investigation of allegations in 17(v) to 17(viii) would require Tribunal to review processes of PDT which was outside jurisdiction of Tribunal – Tribunal applied reasoning in Commissioner of Police v Creedy [2007] NZCA 311 that actions of PDT not attributable to respondent and not open to review in personal grievance proceedings – Tribunal found nothing to suggest had any more power than Authority to review decisions of PDT or that present circumstances distinguishable from Creedy – Tribunal found reference to “entrapment” in clause 17(ii) suggested defence to allegation of misconduct – Therefore matter heard and determined by PDT – Seeking reconsideration from Tribunal amounted to appeal against original finding – Tribunal found no such right of appeal – Tribunal concluded by applying reasoning in Creedy that Tribunal’s treatment of allegations to effect that applicant entrapped could not be attributed to Commissioner – Paragraph 17(ii) struck out by Tribunal – Also struck out paragraph 17(iii) to extent it concerned justification for suspension – Tribunal relying on reasons and conclusions in Creedy, struck out paragraphs 17(v) to 17(viii) on grounds claim an attempt to review proceedings of PDT |
| Result | Orders accordingly ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s114(6);ERA s252;Employment Contracts Act 1991 s33;Police Act 1958 s12 |
| Cases Cited | Commissioner of Police v Creedy [2007] NZCA 311;Roberts v Commissioner of Police unreported, J Wilson, 15 September 2005, AA 360/05;Roberts v Commissioner of Police unreported, Colgan CJ, 27 June 2006, AC 33/06 |
| Number of Pages | 4 |
| PDF File Link: | aa 230_07.pdf [pdf 23 KB] |