| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 30/09 |
| Hearing date | 7 Oct 2008 - 8 Oct 2008 (2 days) |
| Determination date | 03 February 2009 |
| Member | A Dumbleton |
| Representation | I Davidson ; J Douglas, R Laban (Respondent in person) |
| Location | Auckland |
| Parties | Adlam v National Advocacy Trust Nationwide Health & Disability Advocacy Service and Ors |
| Other Parties | The Trustees of the Ahipara Health and Resource Trust, Laban |
| Summary | RAISING PERSONAL GRIEVANCE – Unjustified dismissal – Applicant claimed grievance raised within 90 days with first respondent (“NAT”) – Applicant alternatively claimed exceptional circumstances and overall justice favoured granting of leave to raise grievance out of time – Applicant and second respondent (“AHRT”) entered into mediated settlement to resolve employment relations problem – Settlement provided no “derogatory comments” to be made about each other and AHRT not to inhibit applicant’s chances of obtaining future employment – One year later, applicant visited AHRT premises to retrieve files – Third respondent (“L”) advised applicant to leave due to trespass notice – Applicant refused and verbally abused L – Applicant eft abusive message on L’s phone – L informed NAT of incident - Applicant to start employment with NAT which required applicant to work with AHRT - NAT unaware of trespass notice at time of applicant’s employment - NAT’s disciplinary proceedings concluded dismissal on grounds of abusive behaviour and trespass notice placed restrictions on applicant’s abilities to perform duties - Applicant emailed NAT to accept decision – Two weeks later applicant requested reconsideration of dismissal – NAT declined - NAT claimed grievance raised when proceedings served 91 days later – Authority found grievance not raised within 90 days – Grievance could be gradually raised over period of time by series of words, action or gestures but their effect must make employer aware of grievance – Found substance of email advised NAT dismissal not contested – Found reconsideration request not request to resolve grievance but to get NAT to forgive applicant’s conduct – Found applicant’s representative failed to raise grievance within 90 days by relying on Authority to serve documents on respondents – Applicant claimed exceptional circumstance and just to grant leave to raise grievance out of time – Found no exceptional circumstance existed due to applicant not giving representative specific instructions to raise grievance – Found not just to grant leave when dismissal justified – Found reasonable to conclude trespass notice prevented performance of duty when duty required applicant to have contact with AHRT – Found reasonable that even if trespass notice lifted, applicant’s conduct indicated inability to establish working relationship with AHRT – Found reasonable to regard abusive phone call unacceptable – Leave declined - PENALTY – Applicant sought penalty against L for breach of mediated settlement – Found questionable whether L could be liable for penalty when L not applicant’s employer – Found unjust to impose penalty when L acting in response to abuse – No penalty – PENALTY – Counterclaim – ARHT sought penalty against applicant for breach of mediated settlement - Authority found applicant’s derogatory comments toward L breached settlement – $500 penalty warranted, payable to L and ARHT – Manager |
| Result | Applications dismissed ; Counterclaim granted (Penalty)($500)($400 Payable to third respondent)($100 Payable to second respondent) ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s103(1)(a);ERA s103A;ERA s114;ERA s114(1);ERA s114(4);ERA s115(b);ERA s134;ERA s134(1);ERA s134(2);ERA s135;ERA s136(2);ERA s149;ERA s149(3)(a);ERA s149(4);Health and Disability Commissioner Act 1994 s30 |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Creedy v Commissioner of Police [2008] ERNZ 109;Air New Zealand Ltd v Hudson [2006] ERNZ 415 |
| Number of Pages | 18 |
| PDF File Link: | aa 30_09.pdf [pdf 56 KB] |