Personal Grievance - Raising of Personal Grievance - Employment Relations Act 2000
Balfour v Central Hawkes Bay Support and Counselling Service Inc
31 Jul 2007, P R Stapp, WA 107/07, (6 pages)
JURISDICTION - RAISING PERSONAL GRIEVANCE - Applicant claimed respondent breached confidentiality provision in record of settlement by supplying documents to Police under search warrant - Alleged respondent did not act in good faith when it did not disclose certain documents to him before settlement - Applicant raised personal grievance after received discovery of documents seized by Police - Respondent challenged Authority's jurisdiction to proceed with allegations and claimed any personal grievance raised out of time - Applicant no longer employee of respondent and none of his terms and conditions of employment survived end of relationship, save for terms of settlement as matter of contract - Settlement between parties full and final - Applicant could not succeed with claim of personal grievance and breach of good faith - Applicant aware other matters could come to light after final settlement and took that risk - Questions about search warrant's accuracy and breaches of privacy not matters within Authority's jurisdiction - BREACH OF CONTRACT - GOOD FAITH - Also claimed respondent acted dishonestly and colluded with ACC and Police to deceive him - ACC brought fraud proceedings against applicant - Applicant sought costs of successful defence in District Court - Submitted cost directly caused by respondent keeping and giving copy of settlement and other documents to ACC under search warrant, and documents should have been destroyed or kept secure - Appeared respondent tried to keep information on applicant confidential, while leaving clear impression with ACC and Police in possession of some documents - Respondent's president told truth at time, nothing less that what would be expected - President had to comply with search warrant and Authority accepted she did what she believed she had to do in circumstances - Defence accepted - Record of settlement open to scrutiny for enforcement and to meet legal requirements even though confidential - Without wilful and deliberate conduct in being party to ACC's enforcement role, respondent could not be held liable for costs between applicant and ACC in form of damages - Claims for breach of confidentiality and good faith dismissed
Result:
Application dismissed ; Costs reserved
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Clark v Nelson Marlborough Institute of Technology
12 Nov 2007, P Montgomery, CA 135/07, (4 pages)
RAISING PERSONAL GRIEVANCE - Whether letter from applicant raised personal grievance - Wrote to respondent's HR manager asking to be removed from probation and given pay rise - Commented in letter that preferred to have matter resolved informally but if it was not, believed she had strong grounds for personal grievance - No doubt applicant raising problem with employer and asking it be addressed - Applicant had plain language explanation of employment relationship problem resolution processes - Highly probable that, aware of formal process of raising personal grievance, applicant opted for more informal method of problem solving, while clearly indicating could invoke alternative process - Did not mention employment relationship problems when resigned - Applicant raised employment relationship problem relating to remuneration with respondent but elected, at that time, not to raise a formal personal grievance - First definitive indication that personal grievance being formally raised came in letter from solicitor well outside 90 day period - Application for leave required if applicant wished to pursue personal grievance
Result:
Application dismissed ; Costs reserved
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Faith v Taonga Imports Ltd
19 Dec 2007, M Urlich, AA 402/07, (3 pages)
RAISING PERSONAL GRIEVANCE - Authority previously determined letter relied on by applicant had not raised grievance - Sought leave to raise personal grievance out of time - Submitted took reasonable steps to raise grievance but correspondence mis-addressed by agent, and respondent constructively on notice of grievance because of letter - "Reasonable steps" ground not available because applicant's instructions to agent were outside 90-day period for raising grievance - Respondent's submission that constructive notice not an exceptional circumstance accepted, and issue of letter already determined by Authority - Earlier correspondence could not reasonably be read with letter to raise grievance, actually or constructively - Application for leave to raise grievance out of time declined
Result:
Application dismissed ; Costs reserved
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Hunt v Air New Zealand Ltd
31 Mar 2008, J Crichton, CA 29/08, (10 pages)
JURISDICTION - Respondent resisted personal grievance and arrears claim on basis related to applicant's dealings with ACC - Submitted Authority lacked jurisdiction - Respondent an accredited employer and provided accident compensation entitlements to employees as agent of ACC - Essentially applicant's complaints were problems with ACC agent, not employment relationship problems, even though employer was agent - Authority prohibited by Injury Prevention, Rehabilitation and Compensation Act 2001 from inquiring into matters within ACC domain - With one exception, Authority had no jurisdiction - Authority able to hear complaint about behaviour of respondent's HR adviser - RAISING PERSONAL GRIEVANCE - Grievance notified to respondent concerned only ACC matters and did not raise HR manager's comments - Also raised out of time - No valid personal grievance raised - In any event, HR manager had clarified position when applicant expressed anxiety and made it clear frustration of contract did not apply to applicant at that time - Application dismissed - Storeman
Result:
Application dismissed ; Costs reserved
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McLeod v Harpers Fashions Ltd
30 Oct 2007, M Urlich, AA 339/07, (4 pages)
RAISING PERSONAL GRIEVANCE - Applicant sought leave to raise personal grievance out of time on grounds exceptional circumstances existed - Claimed instructed advocate to raise grievance on her behalf on first working day after employment ended, and advocate unreasonably failed to ensure grievance raised in time - Correspondence from applicant to advocate showed that five months after employment ended applicant did not know what action advocate had taken in relation to grievance - Did not support assertion unequivocally instructed advocate to raise personal grievance on her behalf - Advocate produced letters addressed to respondent and mediation service - Although dated within time limit, no evidence letters sent or received by addressees - Letter to respondent asked for agreement to attend mediation and fell short of raising personal grievance - Tentative correspondence consistent with tentative instructions - Applicant did not make reasonable arrangements with advocate to raise grievance on her behalf - Application for leave to raise grievance out of time declined
Result:
Application dismissed ; Costs reserved
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van der Zwan v Plunket
23 Jul 2007, V Campbell, AA 214/07, (6 pages)
RAISING PERSONAL GRIEVANCE - Application for leave to raise personal grievance out of time - Earlier determination found grievance not raised within 90 days - Respondent argued matter res judicata and proceedings should be struck out - Whether applicant estopped from having application granted - Authority not convinced present proceedings identical to issue previously determined - Earlier matter considered only whether grievance raised within 90 day period - No application for leave before Authority at that time - Current applicant next logical step in process provided in Employment Relations Act 2000 - Authority satisfied applicant instructed solicitor to raise grievance with respondent - Solicitor unreasonably failed to ensure this happened within required time frame - While some inordinate delays pursuing matter, applicant at all times intent on pursuing her grievances - Respondent on notice from soon after dismissal applicant intended to challenge dismissal - Open to respondent to request statements from staff intending to leave organisation and record contact details - Authority unable to make assessment of relative merits of parties' claims - Disadvantage to applicant in not having grievance investigated outweighed any prejudice to respondent - Leave to raise grievance out of time granted - Parties directed to mediation
Result:
Application granted ; Orders accordingly ; Parties directed to mediation ; Costs reserved
