| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 217 |
| Hearing date | 28 Apr 2011 |
| Determination date | 23 May 2011 |
| Member | R Larmer |
| Representation | P Swarbrick ; G Mayes |
| Location | Auckland |
| Parties | Handley v Auckland Council (formerly Rodney District Council) |
| Summary | RAISING PERSONAL GRIEVANCE – Respondent claimed grievance raised out of time – Authority previously determined applicant had not raised personal grievance claim – Applicant challenged determination, current position personal grievance claim not yet raised – Applicant sought leave to raise grievance out of time - Applicant claimed delay in raising grievance due to exceptional circumstances, namely applicant’s agent (“S”) unreasonably failed to ensure grievance raised in time – Claimed just to grant leave as dismissal unjustified as decision substantively and procedurally flawed – Respondent claimed applicant failed to give sufficient instructions to S about basis for grievance and how wanted it remedied – Claimed unjust to grant leave as grievance unlikely to succeed, remedies would be reduced by contributory conduct and prejudiced by excessive delay – Before dismissal applicant discussed possibility of dismissal with S and told S would challenge if dismissed – Authority noted applicant’s evidence did not set out instructions to S grievance should be raised or arrangements made - After dismissal for serious misconduct at meeting applicant said words to effect dismissal would be challenged – S notified respondent of applicant’s intention to raise personal grievance three days later – Letter did not set out relevant facts, remedies or how matter could be resolved – Authority noted applicant unable to provide evidence when and how knew about S’s letter to respondent - Respondent not notified applicant requested mediation until after 90 day period expired – Respondent notified Mediation Services did not consent to raising grievance out of time – Applicant told S wanted to challenge Authority’s previous determination – S arranged appointment with lawyer, appointment delayed by work commitments and holiday period – Application for leave lodged 290 days after dismissal – Authority found applicant did not give S clear instruction or advice about what applicant seeking from respondent to resolve grievance – Applicant acknowledged aware of personal grievance clause in employment agreement - Claimed thought clause only applied when employed and, as after dismissal, relied on S to pursue grievance – Applicant admitted did not tell respondent what wanted to achieve and did not follow up when respondent did not reply to S’s letter – Authority found applicant only gave reliable evidence of discussion with S prior to dismissal when told S wanted to challenge dismissal – Found discussion did not amount to reasonable arrangements by applicant for S to raise personal grievance on behalf – S claimed raised personal grievance on day of dismissal by comments made at dismissal meeting – Applicant claimed S asked after meeting if wanted to go ahead with grievance - Authority found if S believed had already raised personal grievance there would have been no reason to discuss with applicant after meeting what action to take – Authority noted S’s evidence did not refer to applicant asking or instructing S to raise personal grievance – Authority found S’s reference to discussion was to conversation before dismissal meeting, not after – Found applicant did not discharge onus made reasonable arrangements to have grievance raised by S on applicant’s behalf – Found applicant only gave S broad and general instructions which did not constitute reasonable arrangements to have grievance raised – Noted grievance could not be raised before applicant dismissed – Leave to raise grievance out of time declined |
| Result | Application dismissed ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s114;ERA s114(1);ERA s114(3);ERA s114(4);ERA s114(4)(a);ERA s115;ERA s115(b) |
| Cases Cited | Chief Executive of the Department of Corrections v Waitai & Ors [2010] NZEMPC 164;Creedy v Commissioner of Police [2008] ERNZ 109;Handley v Rodney District Council, unreported, J Wilson, 17 December 2010, AA 514/10;McMillan v Waikanae Holdings (Gisborne) Ltd (t/a McCannics)(2005) 2 NZELR 402;Melville v Air New Zealand Ltd [2010] NZEMPC 87;Melville v Air New Zealand Ltd [2010] NZCA 563;Stevenson v Hato Paora College Trust Board [2002] ERNZ 103;Telecom New Zealand Ltd v Morgan [2004] ERNZ 9;Wilkins & Field Ltd v Fortune [1998] ERNZ 70 |
| Number of Pages | 20 |
| PDF File Link: | 2011_NZERA_Auckland_217.pdf [pdf 56 KB] |