| Restrictions | Includes non-publication order |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | CA 54/09 |
| Determination date | 27 April 2009 |
| Member | H Doyle |
| Representation | S Zindel ; G Praat, J Shingleton |
| Location | Christchurch |
| Parties | W v Y and Anor |
| Other Parties | Z Ltd |
| Summary | PRACTICE AND PROCEDURE – First issue whether personal grievance raised against second respondent (“Z”) within 90 days – Second issue whether applicant (“W”) commenced proceedings against Z within three year limitation period – Third issue whether extension of time should be granted – W raised personal grievance against first respondent (“Y”) alleging unjustified disadvantage, constructive dismissal and sexual harassment in 2005 – Allegations subject to criminal trial – Y found not guilty - Parties agreed personal grievance proceedings would commence after conclusion of trial – W received documents from Inland Revenue Department showing Z employer – No further steps taken until 2007 – W requested Y to attend mediation – Y declined and advised not employer – Documents exchanged between parties showed Y not employer – Y’s representative offered to be point of contact for applicant’s employer – Company search confirmed Z employer – W’s representative died before determination of whether Y correct respondent – W’s new representative lodged amended statement of problem (“SOP”) naming Y first respondent and Z second respondent in 2008 – SOP not served on Z until late 2008 due to Authority’s error – Z claimed W barred from proceedings against Z because limitation period expired – W sought extension of time – Authority found grievance raised within 90 days against Z through Y as representative – Grievance letter addressed to premises where employment took place – Found grievance proceedings against Z commenced outside of 3 year limitation period – Found discretion exercised in Z’s favour – Found W had sufficient information to know Y may not be correct respondent from early 2007 and could have conducted company search then – Found W not to be faulted for delay caused by representative’s death – Found delay during Y’s criminal proceedings reasonable - Employment relationship between Y and Z though reliance would have been placed on verdict – Found delay in serving Z Authority’s responsibility – Found overall, delay would prejudice Z – Unavailability of witnesses and faded memories of available witnesses would affect Z’s credibility – Found no material subsequent events – Found merits indeterminate – Claim based on party credibility therefore outcome of criminal trial did not affect grievance claim – Found overall justice favoured Z – Found W prejudiced if Y found not correct respondent and barred from bringing proceedings against Z – However W knew existence of Z as possible employer and greater prejudice suffered by Z if extension of time granted – Leave to extend time for claim against Z declined – Claim against Y pending - Waitress/Kitchen-hand |
| Result | Application dismissed; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s114(4);ERA s114(6);ERA s219;ERA s221 |
| Cases Cited | Collins v Idea Services Ltd and IHC New Zealand Incorporated, unreported, Woods J, 23 Sept 2008, WA125/08;Roberts v Commissioner of Police, unreported, Colgan CJ, 27 Jun 2006, AC33/06;Stevenson v Hato Paora College [2002] 2 ERNZ 103;Tupou Tu’itupou v Guardian HealthCare Operations Ltd, unreported, Perkins J, 6 Sept 2006, AC50/06 |
| Number of Pages | 12 |
| PDF File Link: | ca 54_09.pdf [pdf 50 KB] |