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Fraser v The Vice Chancellor, University of Otago
9 Mar 2007, H Doyle, CA 22/07, (5 pages)
RAISING PERSONAL GRIEVANCE - PRACTICE AND PROCEDURE -
Whether grievance raised within 90 days - Whether communications between
parties could be admitted as evidence to support claim grievance raised -
Respondent claimed first notified of grievance outside 90 day period -
Parties' representatives had telephone conversation after mediation
- Personal grievance raised in time during conversation - Respondent
submitted conversation continuation of mediation and inadmissible under
Employment Relations Act 2000 s148(1)(b) and (d) - Not necessary to hear
statements of what occurred at mediation or determine admissibility because
phone call not continuation of mediation process, even if initiative for it
arose from that process - Respondent claimed communications protected from
disclosure to Authority because without prejudice and therefore privileged
- Respondent sent letter on same day as conversation confirming belief
applicant had no grounds for claim - Claimed letter intended to be without
prejudice although not marked as such - Authority doubted whether letter
attracted privilege - Nothing in letter had bearing on negotiation or
attempt to settle or could be construed as admission of liability -
Representative's raising of grievance during phone call not a
communication intended to encourage and facilitate negotiation or settlement of
dispute - Privilege only applied if dispute existed between parties - It
could not exclude proof claim raised by one party - Privilege did not
extend to raising of grievance as was independent of negotiations - Even if this
not the case, Authority not satisfied letter privileged as contained response to
grievance claim - Latter admissible as evidence grievance raised - Without
prejudice communications could be admissible if avoided Authority being misled
or deceived - That would result if conversation and letter deemed inadmissible
- Unjust to applicant if respondent able to maintain not notified of
grievance until statement of problem filed - Evidence grievance raised in
communications admissible
Result: Question answered in favour of applicant ; Costs reserved
Kendrick v Orica New Zealand Ltd
10 Aug 2006, j Scott, AA 262/06, (12 pages)
UNJUSTIFIED DISMISSAL - Serious misconduct - Driver reported
safety fitting on tanker removed - Video surveillance from previous night showed
unidentifiable person wearing red on top of tanker - Gate activity records
showed applicant and another employee on site around time of incident -
Applicant identified elsewhere on video wearing red - Manager met both men and
decided applicant had case to answer - Disciplinary investigation commenced and
applicant suspended - Respondent concluded applicant guilty of serious
misconduct and dismissed him - Evidence at investigation meeting differed in
number of respects from evidence gathered during disciplinary investigation -
Critical to Authority's assessment that regarded what known and done by
respondent at time decision to dismiss made - Respondent's evidence preferred -
No unfairness resulted out of preliminary discussion - Fair and thorough
investigation - Extreme hazard posed by tampering meant seriousness of
misconduct outweighed any positive features of applicant's employment history -
Failure to retain some footage not fatal to finding dismissal justified, but
retention would have enhanced process - Not fatal no motive established -
Respondent not required to positively identify person on tanker or show conduct
complained of occurred, only that following fair and through inquiry it arrived
at honest belief misconduct occurred - Conclusion open to respondent and
dismissal action that would have been taken by fair and reasonable employer -
Dismissal justified - RAISING PERSONAL GRIEVANCE - Grievance not raised in
relation to suspension within 90 days and had not sought leave to raise it out
of time - No findings made - However, Authority noted had it considered
applicant disadvantaged unlikely remedies would have been awarded given
circumstances and contribution - Length of service one year ten months -
Driver
Result: Application dismissed ; Costs reserved
McKelvie v Spacific Yearbooks Ltd
8 Mar 2007, R A Monaghan, AA 64/07, (4 pages)
RAISING PERSONAL GRIEVANCE - PRACTICE AND PROCEDURE -
Whether letter marked "without prejudice" could raise personal
grievance - On any reading, letter to respondent's counsel raised
grievances - Whether privilege meant letter could not be produced or
relied on in evidence - Authority considered contents of letter with
reference to bearing on settlement negotiations - Due to nature of letter,
Authority did not accept approach offended against judicial disapproval of
"dissecting out" admissions from rest of without prejudice
communication - Privilege properly invoked in respect of "remedies
sought" section as had bearing on, or reasonably incidental to, any
attempt to settle - Authority had difficulty accepting "background
facts" section had that kind of relevance to negotiations -
Investigation and determination of grievances would be impeded if correspondence
withheld because without prejudice written at start - Section of letter
raising grievances had nothing else to do with settlement negotiations -
Authority did not believe it could be anything but misled if nothing in evidence
to show grievances raised by letter when that was exactly what happened and both
parties knew it - If applicant forced to apply for leave to raise
grievance out of time the process involved in determining application would
compound the misleading of the Authority - Not in interests of justice to
permit withholding in entirety a letter raising a personal grievance,
particularly if resulted in absence of evidence grievances raised at relevant
time - Injustice would be exacerbated by forcing grievant into further
litigation to seek leave - Without prejudice letter could raise grievance,
but if matter proceeded to litigation and admissibility of letter in issue,
question was whether legal tests for attracting without prejudice privilege were
met - Authority did not believe they were met in respect of part of letter
which raised applicant's
grievances
Result: Question answered in favour of applicant ; Costs reserved
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