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Ford v Metallic Sweeping (1998) Ltd
24 Nov 2006, P Cheyne, CA 164/06, (4 pages)
RAISING PERSONAL GRIEVANCE - Application for leave to raise personal grievance out of time - Respondent claimed no exceptional circumstances and applicant exaggerated extent of incapacity - Applicant informed had cancer and required surgery - Told dismissed while driving home - Underwent treatment for next four months and representative unable to make contact with her - Authority preferred representative's evidence did not tell respondent no grievance would be raised - Applicant claimed so traumatised by dismissal unable to properly consider raising grievance within time - Also relied on impact of cancer - Applicant limited contact with outside world and dealt only with necessitates of living - State continued throughout 90 day period for raising personal grievance - Applicant to succeed in reliance on s115(a) Employment Relations Act 2000 ("ERA") - Telecom New Zealand Ltd v Morgan (cited below) distinguished as no preparatory steps taken by applicant - Also succeeded under s114(4)(a) ERA - Authority did not accept s114(4)(a) should be read as if included s115(a) - Limiting it in that way would be nonsense as exceptional circumstances would not include external supervening event - Words in s114, as interpreted by cases under ERA and previous Act, must be applied - No doubt applicant's diagnosis and treatment for potentially life-threatening cancer during three months under scrutiny amounted to exceptional circumstance - Respondent claimed applicant delayed providing details of alleged grievance until shortly before investigation meeting - Able to respond to grievance when received letter seeking consent to raise it out of time - Even if grievance not properly raised until proceedings, it did not advance respondent's case - Applicant signalled before dismissal that decision would be challenged - Previous dealings between respondent and applicant's representative - In circumstances, would expect respondent to preserve evidence - No evidence respondent prejudiced by granting of leave - Just to grant leave - Parties directed to mediation
Result: Application granted ; Orders accordingly ; Parties directed to mediation ; Costs reserved
Van Der Zwan v Royal New Zealand Plunket Society
3 Nov 2006, V Campbell, AA 335/06, (5 pages)
RAISING PERSONAL GRIEVANCE - Whether personal grievance raised within 90 days - Letter of dismissal set out applicant's entitlement to submit personal grievance - First notification of personal grievance was letter from applicant's lawyer two weeks after dismissal that contained general indication of personal grievance and promised more particulars - First letter did not provide sufficient information to allow respondent to respond - Respondent requested particulars be provided within 90 day period - Particulars not provided for 10 months - Applicant claimed lawyer's letter was culmination of series of interactions, including mediation, prior to dismissal and that respondent fully aware of facts giving rise to grievance - Previous interactions were to determine disciplinary action to be taken against applicant, not in nature of resolving personal grievance - Grievance not raised within 90 days
Result: Application dismissed ; Costs reserved
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