| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 384/10 |
| Hearing date | 21 Jul 2010 |
| Determination date | 25 August 2010 |
| Member | R A Monaghan |
| Representation | E Telle ; N Taefi |
| Location | Auckland |
| Parties | Siaosi v Kennerley Retail Investments Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - Applicant claimed unjustifiably dismissed - Respondent claimed grievance raised outside 90 day period and did not consent to grievance being raised out of time - Applicant claimed grievance raised within time but alternatively applied to raise grievance out of time on ground were exceptional circumstances - Applicant summarily dismissed for serious misconduct - Applicant consulted lawyer (“W”) - W discussed provision of reference with respondent - W discovered had conflict of interest and so no longer able to act for applicant - Applicant claimed attempted to find another lawyer but unable to do so until about six months after dismissal - Applicant claimed W’s communications with respondent sufficient to raise grievance - Authority found W requested reference and made clear statements grievance not being raised at that time - Found statements did not close door to raising grievance in future but did not amount to raising grievance - Found grievance not raised within time - Applicant claimed so affected or traumatised by matter giving rise to grievance unable to properly consider raising it in time - Found applicant provided no independent medical evidence in support of claim - Found assertions of applicant’s mother and brother did not reach necessary threshold - Found applicant able to contact lawyer, subsequently approach other lawyers, apply for job, and approach respondent for reference - Authority accepted applicant distressed and depressed but not to extent unable to properly consider raising grievance - No exceptional circumstance - Applicant claimed made reasonable arrangements to have agent raise grievance on his behalf but agent unreasonably failed to ensure grievance raised - Authority found applicant did not instruct W to raise grievance - Found on evidence applicant did not make reasonable arrangements to have grievance raised on his behalf - No exceptional circumstance - Applicant claimed not in possession of copy of employment agreement (EA") containing requisite information about 90 day period - Authority found parties signed written EA contained requisite information - No exceptional circumstances - Whether any other exceptional circumstances - Applicant claimed extent to which content of EA explained to applicant before signed it, failure to provide applicant with copy of EA until after dismissal, and applicant’s limited understanding of English were additional circumstances that created exceptional circumstances - Claimed failure to provide reference was breach of good faith and respondent should be estopped from relying on 90 day provision in EA as not properly drawn to applicant’s attention - Authority found applicant signed declaration stating had read and understood terms of employment or had been explained to his satisfaction - Found likely applicant did not retain copy of EA rather than not provided with one - Found failure to provide reference not unconscionable or amounted to exceptional circumstance - Authority did not accept provision containing 90 day time limit should be disregarded or was breach of good faith amounting to exceptional circumstance - Leave to raise grievance out of time declined - Customer Services Operator" |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s65(2)(a);ERA s114(1);ERA s114(3);ERA s114(4);ERA s114(4)(a);ERA s114(4)(b);ERA s115;ERA s115(a);ERA s115(b);ERA s115(c) |
| Cases Cited | Clark v Nelson Marlborough Institute of Technology unreported, Couch J, 19 Aug 2008, CC 12/08;Livingstone v Roskilly [1992] 3 NZLR 230;McMillan v Waikanae Holdings (Gisborne) Ltd (t/a McCannics) (2005) 7 NZELC 97,859 ; (2005) 2 NZELR 402;Telecom New Zealand Ltd v Morgan [2004] 2 ERNZ 9 |
| Number of Pages | 13 |
| PDF File Link: | aa 384_10.pdf [pdf 45 KB] |