| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2011] NZERA Christchurch 47 |
| Hearing date | 15 Mar 2011 |
| Determination date | 08 April 2011 |
| Member | J Crichton |
| Representation | J Lawrie ; J Copeland |
| Location | Invercargill |
| Parties | Gorman v Southern District Health Board |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed grievance not raised within 90 days – Applicant dismissed following concerns about clinical competence – Nursing Council (“N”) communicated view applicant competent to practice by letter eight months after last day of employment – Applicant then raised personal grievance – Applicant claimed raised grievance within time because 90 days began from date decision made by N – Respondent claimed grievance must be raised within 90 days of decision to dismiss and therefore grievance not raised in time – Authority found decision of N did not determine whether dismissal decision made by employer ought to be challenged – Found complaint of unjustified dismissal must relate to circumstances surrounding dismissal – Found circumstances must be known around time of dismissal not eight months later – Found applicant observed at disciplinary meeting if N ratified applicant’s professional competence claim would be inevitable – Found insufficient to talk about grievance without identifying what employer needed to put right for grievance to be appropriately addressed – Found applicant merely foreshadowed future intention to raise grievance – Found grievance not raised in time – Found no evidence applicant so affected by circumstances giving rise to grievance that unable to deal with matter appropriately – Found conscious decision by applicant not to raise grievance until decision of N made – Found no exceptional circumstances – Found decision to dismiss reached because respondent effectively lost patience with interminable process of N and respondent unable to continue applicant in employment – Found no disciplinary action taken because applicant removed from clinical interface as soon as respondent decided applicant potentially injurious to patients – Respondent claimed had to reach own decision about whether applicant fit to practice, independent of N – Found no unique situation to show circumstances unusual – Found passage of time would grossly prejudice respondent in defence of claim – Found applicant reluctant to engage in mentoring programme – Found respondent undertook extensive medical assessment of applicant to understand any health issues impacting performance – Found respondent acted fairly and reasonably – Found unjust to grant leave to raise grievance out of time – Registered Nurse |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114;ERA s115 |
| Cases Cited | Creedy v Commissioner of Police [2006] ERNZ 517;Creedy v Commissioner of Police [2008] NZSC 31;Melville v Air New Zealand Ltd [2010] NZEMPC 87 |
| Number of Pages | 10 |
| PDF File Link: | 2011_NZERA_Christchurch_47.pdf [pdf 38 KB] |