| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 231 |
| Determination date | 31 May 2011 |
| Member | Y S Oldfield |
| Representation | M Beech ; K Stretton |
| Location | Auckland |
| Parties | Jordan v K. Pasgaard & Company Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant claimed constructively dismissed – Respondent claimed while was correspondence between parties no grievance raised within time - Applicant’s solicitor sent respondent letter setting out chronology of events leading to resignation and claiming resignation could be seen as dismissal – Applicant outlined possible remedies could receive if personal grievance raised and proposed full and final settlement – Letter advised if response not received by specified date would advise applicant to raise personal grievance – Respondent’s general manager acknowledged receipt of letter and advised was seeking advice – Applicant’s solicitor again asked respondent for response and if none received by specified date would advise client to file statement of problem with Authority – Respondent replied setting out view on chronology of events – Respondent did not seek further particulars and rejected applicant’s claim to settle matters – Applicant’s solicitor replied seeking appropriate and realistic offer and advising if offer not made applicant would have no option but to seek urgent mediation and lodge statement of problem – Respondent’s representative advised further instructions being sought – No further response was received from respondent before 90 day period expired – Subsequently respondent suggested mediation - Authority found at no time prior to lodging statement in reply did respondent claim grievance had not been raised in time - Found grievance raised with employer as soon as employee made, or taken reasonable steps to make, employer or employer’s representative aware that employee alleged personal grievance that employee wanted employer to address – Found applicant’s first letter set out applicant’s concerns comprehensively and made clear believed matters gave rise to constructive dismissal – However, found first two letters did not, separately or collectively, amount to raising of grievance as both letters referred to advice given rather than instructions received – Found third letter indicated solicitor had instructions to file in Authority if matter not settled – Found raising of grievance could be inferred from reference to proceeding in Authority - Found even though letter did not explicitly raise grievance Authority satisfied did so by clear implication, especially in context of exchange of correspondence - Found grievance raised within time - Found even if letter did not raise grievance found circumstances justified granting leave – Found respondent’s correspondence demonstrated acceptance that grievance raised within time or that implied consent had been given to raising it out of time – Application granted |
| Result | Application granted ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114 |
| Cases Cited | Board of Trustees of Te Kura Kaupapa Motuhake o Tawhiuau v Edmonds [2008] ERNZ 139;Creedy v Commissioner of Police [2006] ERNZ 517;Jacobsen Creative Surfaces Ltd v Findlater [1994] 1 ERNZ 35;Phillips v Net Tel Communications [2002] 2 ERNZ 340 |
| Number of Pages | 7 |
| PDF File Link: | 2011_NZERA_Auckland_231.pdf [pdf 23 KB] |