| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 125/08 |
| Determination date | 23 September 2008 |
| Member | G J Wood |
| Location | Wellington |
| Parties | Collins v Idea Services Ltd and Anor |
| Summary | PRACTICE AND PROCEDURE - Applicant’s first representative raised constructive dismissal personal grievance with second respondent - Parties attended mediation, but matter remained unresolved for nearly two years - Applicant then personally filed grievance against ‘Idea Services (Formerly IHC)’ - Authority support staff, following prompt in computer system, served papers on first respondent - First respondent claimed not applicant’s employer - Second respondent claimed applicant time barred from bringing claim against it - Authority found wrong in principle to interpret applicant’s application as application against second respondent - Found not interpreted that way by parties or Authority - Found as matter of law first and second respondents not same entity - Found second respondent not properly identified as applicant’s employer in statement of problem - Applicant claimed second respondent should be joined as party under s221 Employment Relations Act 2000 (“ERA”) - Applicant claimed: proceeded in good faith, second respondent owned all shares of first respondent, second respondent would not be prejudiced, first respondent fully participated in setting up investigation meeting and Authority complicit in process - Authority found s221 ERA did not enable Authority to extend time to bring matter when otherwise would be out of time - Found s221 ERA could not assist applicant - Applicant claimed s219 ERA should be used to allow applicant to bring grievance previously raised with second respondent to Authority - Authority found second respondent would be prejudiced by grant of extension of time - Found applicant would be unable to have his day in court if unable to pursue grievance claim - Found applicant’s mis-description of employer complicated by intervention of Authority staff and acquiescence by first respondent - However, found three years was long period within which to pursue claim and second respondent entitled, at end of three years, to believe claim not being pursued - Found no explanation for almost three year delay after mediation before any application made to Authority - Found applicant’s prospects of having resignation found to be dismissal less than 50 percent because of tests to be met - Authority concluded delays and prejudice outweighed impact on applicant, given that delays were in great part of his own making - Authority found no extension of time should be granted under s219 ERA - Community Support Worker |
| Result | Application dismissed ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s114;ERA s114(6);ERA s219;ERA s219(1);ERA s221;ERA s221(b) |
| Cases Cited | Roberts v Commissioner of Police unreported, Colgan CJ, 27 Jun 2006, AC 33/06;Service Workers Union of Aotearoa and NZ Electrical etc IUOW v Chan [1991] 3 ERNZ 15;Stevenson v Hato Paora College Trust Board [2002] 2 ERNZ 103;Tu'itupou v Guardian Healthcare Operations Ltd unreported, Perkins J, 6 Sep 2006, AC 50/06;Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70 |
| Number of Pages | 8 |
| PDF File Link: | wa 125_08.pdf [pdf 39 KB] |