Personal Grievance - Practice & Procedure - Employment Relations Act 2000
Musa v Whanganui District Health Board and Anor
11 Jul 2008, G J Wood, WA 94/08, (2 pages)
PRACTICE AND PROCEDURE - Application for removal to Employment Court - Applicant claimed first respondent breached settlement agreement through actions of second respondent - Second respondent member of first respondent - All parties agreed important question of law and neither respondent opposed removal to Employment Court - Question of law was whether first respondent vicariously liable to applicant for actions of second respondent where second respondent not authorised to act on behalf of first respondent and did not purport to do so - Question not directly considered by either Authority or Court before - Important question as could apply to all bodies governed by a Board - Issues of mediation, cross-claim by second respondent and non-publication orders could be dealt with by Court - No other factors mitigated in favour of Authority dealing with issue at first instance - Matter removed to Employment Court
Result
Application granted ; Orders accordingly ; No order for costs
Roberts v Commissioner of New Zealand Police
2 Aug 2007, R A Monaghan, AA 230/07, (4 pages)
PRACTICE AND PROCEDURE – Respondent sought to strike out proceedings – Applicant claimed unjustifiably dismissed and disadvantaged in substantive proceedings – Authority heard matter separately from substantive at request of parties – Authority had previously determined applicant could not proceed with grievance as brought outside 3 year time limit in s114(6) ERA – Previous determination challenged in Employment Court – Court concluded proceedings brought within time limit and matter to now be decided on merits in Employment Tribunal (“Tribunal”) – By direction of Court under s252 ERA Chief of Authority appointed member to exercise jurisdiction of Tribunal – Respondent argued allegation that suspension unlawful raised out of time, without consent of employer and without leave of Tribunal – Tribunal found grievance based on suspension raised outside 90 day period and no application to submit grievance out of time – Pleadings struck out to extent related to justification for suspension – Applicant’s claim that unjustifiably dismissed based substantially on fairness of procedure of Police Disciplinary Tribunal (“PDT”) – Respondent sought orders striking out certain paragraphs in amended statement of claim – Respondent argued investigation into allegations contained in paragraphs 17(ii) and 17(iii) of statement of claim would undermine findings and decision of Tribunal to extent related to Tribunal hearing – Argued further investigation of allegations in 17(v) to 17(viii) would require Tribunal to review processes of PDT which was outside jurisdiction of Tribunal – Tribunal applied reasoning in Commissioner of Police v Creedy [2007] NZCA 311 that actions of PDT not attributable to respondent and not open to review in personal grievance proceedings – Tribunal found nothing to suggest had any more power than Authority to review decisions of PDT or that present circumstances distinguishable from Creedy – Tribunal found reference to “entrapment” in clause 17(ii) suggested defence to allegation of misconduct – Therefore matter heard and determined by PDT – Seeking reconsideration from Tribunal amounted to appeal against original finding – Tribunal found no such right of appeal – Tribunal concluded by applying reasoning in Creedy that Tribunal’s treatment of allegations to effect that applicant entrapped could not be attributed to Commissioner – Paragraph 17(ii) struck out by Tribunal – Also struck out paragraph 17(iii) to extent it concerned justification for suspension – Tribunal relying on reasons and conclusions in Creedy, struck out paragraphs 17(v) to 17(viii) on grounds claim an attempt to review proceedings of PDT
Result
Orders accordingly ; Costs reserved
