| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 404/08 |
| Determination date | 25 November 2008 |
| Member | R Arthur |
| Representation | B Morgan (Applicant in person) ; C Speksnijder |
| Location | Auckland |
| Parties | Morgan v Quality Environmental Consulting Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - Applicant did not formally raise personal grievance with respondent before lodging statement of problem (“SOP”) in Authority – Respondent initially claimed lodging SOP did not validly raise personal grievance – However, respondent then accepted once served on employer SOP may satisfy requirement in s114 Employment Relations Act 2000 (“ERA”) for making employer aware of personal grievance, provided done within 90 day period – Authority accepted that as correct as no prescribed form in which grievance had to be raised with employer - Authority found applicant’s SOP contained sufficient detail that serving of SOP satisfied s114 ERA requirement – Issue then whether grievance raised within 90 days - Applicant claimed decision to make position redundant substantively and procedurally unfair – Authority found redundancy grievance could be both unjustified dismissal and unjustified disadvantage - Respondent claimed 90 day period ran from time applicant orally told of redundancy and therefore grievance raised out of time – Authority rejected submission – Found for unjustified dismissal grievance beginning of 90 day period could be from end of notice period or last day applicant attended work - Found in either case grievance raised within time – Found unjustified disadvantage grievance could relate to confirming decision in writing, how respondent dealt with redeployment options, and notice requirements – Found grievance raised within 90 days of those actions - Applicant claimed unjustifiably disadvantaged by respondent’s treatment of her health and performance matters – Authority found grievance raised out of time – However, found Authority could still consider those factual circumstances as part of resolving employment relationship as whole – Found Authority not bound to treat matter as type described by parties – Found arguable applicant constructively dismissed due to breaches of terms of employment relating to safety, trust and confidence which were so serious that reasonably foreseeable applicant would entirely end employment rather than take up alternative position - JURISDICTION – Applicant had 10 percent shareholding in respondent – Applicant claimed forced to sell shares back to respondent when made redundant – Respondent claimed applicant forced share buy back – If applicant found to have unjustified dismissal grievance, sought compensation for loss of dividends would otherwise have received - Respondent claimed applicant’s ownership of shares and any change in ownership not actions arising from or related to employment relationship so Authority had no jurisdiction - Authority found at preliminary stage unable to accept respondent’s submission dealings in shares entirely ancillary to employment relationship and that no direct connection between parties’ actions in dealing with shares and employment relationship – Found Authority might have jurisdiction, depending on specific terms on which applicant received, held and transferred back shares – Found issue could be investigated as part of investigation into personal grievances - Parties had previously attended mediation – Authority found required to direct parties to attend further mediation – Manager |
| Result | Application partially granted (Raising personal grievance) ; Orders made ;Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114;ERA s114(1);ERA s114(2);ERA s144A;ERA s157;ERA s159(1)(b);ERA s159(2);ERA s160;ERA s161(1)(r) |
| Cases Cited | Board of Trustees of Te Kura Kaupapa Motuhake o Tawhiuau v Edmonds [2008] ERNZ 139 |
| Number of Pages | 9 |
| PDF File Link: | aa 404_08.pdf [pdf 31 KB] |