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Duigan v The British High Commission
13 Mar 2007, RA Monaghan, AA 67/07, (3 pages)
RAISING PERSONAL GRIEVANCE - PRACTICE AND PROCEDURE - Applicant submitted personal grievance in 1997 - Took matter no further until October 2006 when filed statement of problem in Authority - Authority drew applicant's attention to Limitation Act 1950 - Proceedings initiated nearly nine years after cause of action accrued - Applicant claimed too distressed to take claim further and lacked funds to pay solicitors to continue to act - On two previous occasions applicant obtained blank statement of problem forms but did not file anything as felt meeting respondent and Authority would cause her to become distressed and emotional - No evidence provided to establish circumstances fell within s24 Limitation Act - No evidence of psychiatric or psychological cause leading to inability to initiate proceedings - Even if Authority accepted possibility that for period after employment ended applicant under disability, nothing to indicate disability continued until at least October 2000 (six years before date of filing) - Tribunal had no ability to waive provisions of Limitation Act - Personal grievance and claim for redundancy compensation filed too late - Limitation Act prevented both from proceeding - Matter dealt with as member of Tribunal
Result: Application dismissed ; No order for costs
Howard v Inner City Interagency Trust
12 Jul 2007, P Montgomery, CA 79/07, (11 pages)
UNJUSTIFIED DISMISSAL - Summary dismissal - Serious misconduct - Manager and applicant friends prior to employment - Employed at drop-in centre by manager - Applicant claimed manager's attitude towards her affected by out-of-work issues - Incident occurred involving visitor inhaling a white powder in centre lounge - Applicant claimed did not see incident and thus unable to intervene - Respondent believed applicant should have seen incident - Manager received complaints applicant present and did nothing to prevent or stop incident - Applicant handed letter of suspension with immediate effect - Told support person unnecessary and would be given opportunity to explain at investigation - Investigation held and applicant subsequently dismissed - Incident constituted serious breach of policy - Applicant aware of policies - Satisfied applicant did not see incident - Complainants not available at investigation meeting - Respondent deemed failure to observe incident serious misconduct, and concluded she deliberately condoned incident - Knowledge of identity of complainants denied on ground might intimidate them - Respondent gave too little weight to applicant's handling of prior similar incident - Respondent created expectation applicant would have opportunity to comment prior to confirmation of penalty - Fair and reasonable employer would have considered matters and found if misconduct occurred, remedy short of dismissal appropriate - With exception of summary suspension, investigation process generally fair - Alleged conduct not capable in circumstances of amounting to serious misconduct - Dismissal unjustified - UNJUSTIFIED DISADVANTAGE - Claimed denied opportunity to be heard prior suspension - Grievance not raised within 90 days - No application to raise grievance out of time - Grievance time-barred - However, given method suspension imposed unsatisfactory, matter considered globally in remedies - Community worker
Result: Application granted ; Reimbursement of lost wages ($5,712)(8 weeks) ; Compensation for humiliation etc ($5,000) ; Costs reserved
Lee v Color Spec Paints Ltd
15 Jan 2007, RA Monaghan, AA 8/07, (5 pages)
RAISING PERSONAL GRIEVANCE - Application for leave to raise grievance out of time - Applicant alleged delay occasioned by exceptional circumstances and just to grant leave - Claimed representative unreasonably failed to raise grievance in time - Approached barrister before resignation but did not give precise instruction regarding personal grievance - However, did convey wanted to proceed to litigation and discussed raising grievance based on constructive dismissal - Applicant made reasonable arrangements to have grievance raised on his behalf - Barrister's assumption of responsibility for failure genuine - Claimed calculated 90 day period from expiry of notional one month notice period, rather than resignation - Difficult to call failure "unreasonable" as term usually understood, but no good reason for it and Authority did not believe Parliament intended lawyer's error to deprive grievant of ability to have grievance addressed - Unreasonable failure to ensure grievance raised in time - Resignation due to health and safety concerns - Matter should be given full hearing - Just that grievance be allowed to proceed - Leave granted to raise constructive dismissal grievance out of time - Allegations about bad management practices and industrial relations so remote in time and place from resignation unlikely to be given any weight - Applicant to seriously consider withdrawing any reliance on them - No application for leave to proceed with disadvantage grievances
Result: Application granted ; Costs reserved
Mackie v The Order of St John Midland Regional Trust Board
4 Apr 2007, V Campbell, AA 102/07, (9 pages)
RAISING PERSONAL GRIEVANCE - Whether grievance raised within 90 days - Applicant claimed raised personal grievance through exit interview questionnaire - Employer to be given sufficient information to enable it to address grievance - Applicant had problems with area manager - Obtained medical certificate which stated unfit to work - Applicant gave two weeks notice of intention to leave employment - Applicant completed exit interview and attached two written statements highlighting issues - No personal grievance raised - Form and attachments to provide feedback to assist respondent to make improvements in operations - Nothing in documents indicated applicant wanted issues addressed - Authority not satisfied applicant intended documents to raise personal grievance at time they were completed - Applicants circumstances not exceptional - Applicant declined offer by Union to take personal grievance on her behalf - Applicant's situation did not meet test for leave to be granted - Paramedic
McFarlane v Charlie's Trading Company Ltd
13 Apr 2007, L Robinson, AA 108/07, (20 pages)
ARREARS OF WAGES AND HOLIDAY PAY - Applicant alleged bonus due and owing, - Bonus payable if applicant met key performance indicators ("KPI's") - Applicant received bonus first year - Applicant claimed same bonus for subsequent year, but respondent declined payment - Bonus clause required parties to negotiate KPI's - Managing director ("MD") used results of performance review to measure bonus - Nothing prescribed about how KPI's applied to bonus entitlement - Respondent had prerogative to determine quantum according to agreed criteria - Applicant disagreed with measurement and made this clear to MD - MD elected to ignore applicant - Respondent's failure to communicate rejection of applicant's view not responsive or communicative, and contrary to duty of good faith and implied terms of employment - Inaction and failure to negotiate caused loss of opportunity - Authority commented on loss of chance principles - Entitled to compensation for loss of full year, and quarterly bonus entitlement - Parties to agree on quantum of quarterly bonus and holiday pay entitlement - Also claimed requirement to return company car before commenced annual leave unjustifiable - Entitled to car at all times as long as personal use was reasonable - Entitled to reimbursement for loss of use while on leave - RAISING PERSONAL GRIEVANCE - Alleged grievances related to discrimination, stress, and treatment during pregnancy raised out of time - No exceptional circumstances - Sales manager
Result: Application granted ; Arrears of wages ($18,000)(Full year bonus) ; (Quarterly bonus to be calculated by parties) ; Loss of benefit ($2,000)(Car) ; Arrears of holiday pay (Quantum to be calculated by parties) ; Leave reserved for parties to return to Authority for ; Costs reserved
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