| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Auckland |
| Reference No | [2011] NZERA Auckland 467 |
| Determination date | 28 October 2011 |
| Member | K J Anderson |
| Representation | A Hope ; G Williams |
| Location | Auckland |
| Parties | Austin v Silver Fern Farms Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Whether grievance raised within 90 days – Applicant claimed unjustifiably dismissed by respondent – Respondent claimed applicant failed to raise grievance in time - Applicant suspended from employment after absence due to non-work accident (“first injury”) – Applicant not incapacitated by first injury and carried out normal duties until further injury (“second injury”) – After second injury applicant was fit for light duties on limited basis – Authority found applicant worked intermittently after second injury and then unable to work at all – Parties disputed whether second injury work related – Applicant claimed when unable to work at all met with respondent’s plant manager (“O”) to decide what would happen as could no longer work – Applicant claimed respondent did not accept that inability to work due to second injury and told applicant would be “better off” on ACC – Applicant’s medical certificate recorded applicant would be transferred to not work related ACC injury – Found applicant would receive ACC payments related to first injury – Applicant claimed met with O and asked to sign letter notifying respondent had withdrawn ACC claim and transferred to not work related ACC claim – Applicant’s doctor noted likely work related incident caused second injury and “essentially” able to perform normal work duties previously – Respondent sent applicant letter that had suspended applicant until further notice due to “non-work injury” and stated letter was formal notice of termination – Applicant requested further information from respondent – Applicant claimed unjustifiably dismissed by respondent’s letter – Applicant claimed 90 day time limit began when respondent provided further information as requested – Found material provided by respondent not particularly relevant to applicant’s awareness could raise grievance – Found possible dates when grievance could have arisen were when applicant asked to sign letter to respondent had withdrawn claim or when applicant told employment was suspended or terminated – Found grievance not raised within 90 days – Found if applicant had been properly advised outcome may have been different but no evidence applicant made reasonable arrangements for union to raise grievance on applicant’s behalf – Found no exceptional circumstances – Leave to raise grievance out of time declined - Meat Worker |
| Result | Application dismissed ; No order for costs |
| Main Category | Raising PG |
| Statutes | ERA s114;ERA s114(1);ERA s114(4);ERA s115;ERA s115(a);ERA s115(b);ERA s115(c);ERA s115(d) |
| Cases Cited | Melville v Air New Zealand Ltd (2010) 8 NZELR 190 |
| Number of Pages | 8 |
| PDF File Link: | 2011_NZERA_Auckland_467.pdf [pdf 42 KB] |