| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 95 |
| Hearing date | 7 Mar 2011 |
| Determination date | 11 March 2011 |
| Member | A Dumbleton |
| Representation | A Lankovsky ; R Upton |
| Location | Auckland |
| Parties | Aulakh v Yellow Pages Group Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Application to raise grievance out of time - Applicant resigned claiming was doing so “under protest” – Applicant worked out four week notice period, although did spend three days on sick leave – Applicant raised constructive dismissal personal grievance one or two days outside 90 day period – Respondent did not consent to grievance being raised out of time - Applicant claimed so affected or traumatised by matter giving rise to grievance unable to properly consider raising grievance within 90 day period – Authority found evidence fell short of showing applicant so incapacitated as to prevent him from even considering raising grievance – Found was evidence from applicant himself that showed was functioning tolerably well physically and mentally - No exceptional circumstances - Applicant claimed delay in raising personal grievance caused or contributed to by omission from employment agreement (“EA”) of any explanation concerning resolution of employment relationship problems – Found no dispute EA did not contain required explanation - Found applicant’s previous EA with respondent’s parent company contained required explanation – Found applicant’s issue more likely that did not know could raise grievance if had resigned rather than not knowing about process to raise grievance – Found failure to raise grievance not occasioned by omission from EA – Found causality between deficiency in EA and applicant’s lack of action not present - No exceptional circumstances - Authority considered whether would be just to grant leave - Found grievance raised only hours outside 90 day period – Found no evidence to show respondent would be prejudiced by leave being granted - Authority then considered merits of applicant’s case - Applicant claimed resignation was constructive dismissal after being placed on second performance improvement plan (“PIP”) – Applicant claimed unreasonable to place him on PIP because failure to perform resulted from respondent setting unreasonable sales targets - Applicant had previously been successfully placed on PIP – Authority assumed, as had not been stated, applicant claiming respondent breached duty causing resignation - Found no evidence to suggest respondent attempting to coerce applicant into resigning by placing him on PIP – Found resignation in response to being placed on PIP could not be regarded as foreseeable by respondent - Found unlikely applicant would succeed with personal grievance claim for unjustified constructive dismissal – Found not just to grant leave to raise grievance out of time – Found application did not meet either of required standards for raising grievance out of time – Application dismissed - Sales Representative |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s65;ERA s114;ERA s114(4);ERA s114(4)(a);ERA s114(4)(b);ERA s115;ERA s115(a);ERA s115(b);ERA s115(c) |
| Cases Cited | Auckland Electric Power Board v Auckland Provincial District Local Authorities Officers IUOW Inc [1994] 1 ERNZ 168 ; [1994] 2 NZLR 415;Melville v Air New Zealand Ltd [2010] NZEMPC 87;Telecom New Zealand Ltd v Morgan [2004] 2 ERNZ 9;Trotter v Telecom Corporation of New Zealand Ltd [1993] 2 ERNZ 659 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_95.pdf [pdf 38 KB] |