| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | AA 397/10 |
| Determination date | 03 September 2010 |
| Member | J Wilson |
| Representation | K Murray ; C Heaton |
| Location | Auckland |
| Parties | Ball v Healthcare of New Zealand Ltd |
| Summary | RAISING PERSONAL GRIEVANCE - Applicant raised number of concerns with respondent about feeling unsafe in workplace while working with one of respondent’s clients - Respondent removed applicant from working with client - Parties attended mediation but were unsuccessful in resolving outstanding issues - Applicant subsequently dismissed - Respondent had no further contact with applicant until applicant lodged Statement of Problem (“SOP”) in Authority - Respondent claimed applicant raised grievance in 2006 therefore precluded from pursuing claim in Authority by three year limitation period in s114(6) Employment Relations Act 2000 (“ERA”) - Applicant claimed was contacting mediation services or attending mediation in 2007 that grievance first raised, therefore within three year limitation period - Applicant claimed Authority should exercise discretion under s219(1) ERA to extend time limit imposed by s114(6) ERA - Respondent opposed application - Authority found arguable whether applicant raised grievance to standard required - However, found respondent accepted applicant raised grievance - Found grievance raised in 2006 - Applicant claimed received advice from Department of Labour that had three years to commence proceedings from date of mediation - Authority found not clear what advice applicant given, however, even if misinformed about time frame misinformation corrected when applicant contacted Authority in 2009 and clearly advised required to file application within three years of raising grievance - Authority did not accept any incorrect information provided to applicant was factor in not filing SOP within limitation period - Applicant claimed received death threats from client and was in fear for her life - Found applicant appeared to claim traumatic effects made applicant unable to pursue claim - Found applicant able to approach mediation service and Authority - Found applicant’s reasons for not pursuing claim did not provide sufficient cause for her not to do so - Found applicant filed SOP two months outside statutory limitation - Found by itself delay made no significant difference to granting of extension of time - Respondent claimed would face prejudice in trying to defend against applicant’s allegations as senior managers involved in dealing with grievance no longer employed - Authority found Parliament had accepted employee entitled to pursue grievance for up to three years - Found prejudice to respondent of granting extension unlikely to be greater than if applicant pursued claim within, but at end of, limitation period - Found if extension not granted applicant would lose right to pursue grievance - However, found Parliament had circumscribed right by imposing limitation period - Found if extension granted respondent exposed to potential liability until recently unaware of and which had been extinguished by limitation period - Found evidence showed from 2009 applicant aware of limitation period and had sufficiently recovered from any emotional trauma to contact Authority and enquire how to bring claim - Found based on limited evidence applicant had arguable case but Authority unable to make any further assessment of merits - Authority accepted applicant suffered stress and anxiety as result of circumstances which may have been within respondent’s control - However, applicant failed to pursue claim within time - Found overall justice was against grating extension of time sought |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114;ERA s114(1);ERA s114(2);ERA s114(3);ERA s114(4);ERA s114(6);ERa s219(1) |
| Cases Cited | An Employee v An Employer [2007] ERNZ 295;Day v Whitcoulls Group Ltd [1997] ERNZ 541;Clear v Waikato District Health Board [2007] ERNZ 338;Roberts v Commissioner of Police unreported, Colgan CJ, 27 Jun 2006, AC 33/06;Stevenson v Hato Paora College Trust Board [2002] 2 ERNZ 103 |
| Number of Pages | 12 |
| PDF File Link: | aa 397_10.pdf [pdf 41 KB] |