| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | [2011] NZERA Wellington 166 |
| Hearing date | 8 Sep 2011 |
| Determination date | 01 November 2011 |
| Member | R A Monaghan |
| Representation | D Oliver ; K Bignold |
| Location | Napier |
| Parties | Brocklehurst v KBM Machine Maintenance Ltd |
| Summary | RAISING PERSONAL GRIEVANCE – Applicant sought leave to raise grievance out of time – Applicant claimed exceptional circumstances existed justifying leave – Applicant claimed unjustifiably disadvantaged and dismissed by respondent – Applicant sought advice about potential grievances from advocate (“A”) – Applicant told A respondent wanted to change applicant’s duties despite being told doing good job by respondent managing director, had expressed possibility of resignation due to respondent’s actions and resigned after interviewed by Police Officer in course of investigation into loss of data from computer system – A raised grievance with respondent but only referred to interview with Police Officer – Applicant told A wanted to raise circumstances leading up to Police incident and respondent’s treatment of applicant – Applicant told A resigned as felt actions of respondent were such that could no longer continue employment – A told applicant case solely concerned with respondent’s liability for conduct of Police Officer – Applicant obtained new advocate (“G”) – G advised applicant only relevant issue was respondent’s behaviour when Police Officer came into workplace and way in which applicant interviewed – Authority dismissed grievance based on interview with Police Officer – G claimed advised applicant why applicant would be unlikely to succeed in grievance in respect of other events – Authority found unlikely G engaged in discussion with applicant about possibility of grievance regarding other events – Found advice to proceed solely on basis that respondent responsible for actions of Police Officer misconceived – Found other circumstances to which applicant referred capable of providing basis for grievance – Found A and G should have identified other claims – Found A and G unreasonably failed to raise applicant’s grievances in time – Found not reasonable to expect applicant to instruct agent to raise grievances now raised given advice received from A and G – Found applicant made reasonable arrangements to have grievances raised – Found exceptional circumstances existed for grievances – Found did not have enough information to decide applicant’s grievances weak to extent that leave to proceed should be declined – Found fact respondent had already been through mediation and investigation counted against grant of leave to proceed – Found were leave to be declined respondent would still face further litigation – Found just to grant leave to raise grievances out of time – Leave to raise grievance out of time granted – Technician Co-ordinator |
| Result | Application granted ; Costs reserved |
| Main Category | Raising PG |
| Statutes | ERA s4;ERA s4A;ERA s103(1)(b);ERA s114(1);ERA s114(3);ERA s114(4);ERA s115;ERA s115(b) |
| Cases Cited | Brocklehurst v KBM Machines Ltd unreported, D Asher, 12 April 2010, WA 62/101;Creedy v Commissioner of Police [2008] NZSC 31;McMillan v Waikanae Holdings (Gisborne) Ltd (t/a McCannics) (2005) 7 NZELC 97,859;Melville v Air New Zealand Ltd [2010] NZCA 563;Melville v Air New Zealand Ltd [2010] NZEmpC 87 |
| Number of Pages | 14 |
| PDF File Link: | 2011_NZERA_Wellington_166.pdf [pdf 62 KB] |