| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 8 |
| Hearing date | 15 Oct 2010 |
| Determination date | 14 January 2011 |
| Member | H Doyle |
| Representation | S Zindel, H McKinnon ; M Logan, N Mason |
| Location | Nelson |
| Parties | Duffy v Ngatahi Horticulture Partnership a joint venture of Wakatu Incorporation & Ors |
| Other Parties | Ngati Rarua Atiawa Iwi Trust, Ngatahi Patynership Partners |
| Summary | RAISING PERSONAL GRIEVANCE – Whether personal grievance raised in time – Alternatively applicant sought to raise grievance out of time – Respondent argued grievance not raised within 90 days of advising applicant no work available and did not consent to late raising of grievance - Applicant sought leave claiming two exceptional circumstances – Firstly, no employment agreement in place containing explanation about resolution of employment relationship problems – Secondly, circumstances unusual because no notification employment at end – Authority found action applicant alleged as personal grievance was failure by respondent to provide work as permanent employee – Authority noted 90 days ran from date on which action alleged to amount to personal grievance occurred or came to notice of employee – Found no grievance raised within 90 days if action alleged to amount to personal grievance was actual dismissal – Authority examined applicant’s argument that 90 day period ran from when applicant resigned – Found 90 day period ran from date of termination of employment and not from date of repudiatory conduct – Found at heart of matter whether actual dismissal when applicant not offered further work when maintained was permanent employee or whether mistaken belief applicant casual and dismissal not required, and open to applicant cancel agreement by resigning – Found action alleged to be personal grievance was advice to applicant that no work available, therefore given applicant considered self permanent employee, action amounted to dismissal – Found no requirement for applicant to take further step of resigning – Found grievances not raised in time – Found no exceptional circumstances to grant raising grievance out of time – Orchard hand |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s65;ERA s114(1);ERA s115 |
| Cases Cited | Charlton v Colonial Homes Ltd [2001] ERNZ 759;Creedy v Commissioner of Police [2006] ERNZ 517 ; [2008] NZSC 31;Howard v Pickford Tool Co [1951] 1KB 417, 421;Meyer v Ports of Auckland Ltd unreported, Shaw J, 28 July 2004, AC 41/04;Para Franchising Ltd v Whyte [2002] 2 ERNZ 120;Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70 |
| Number of Pages | 11 |
| PDF File Link: | 2011_NZERA_Christchurch_8.pdf [pdf 37 KB] |