Christine Maynard v Bay of Plenty District Health Board

 
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[2011] NZEmpC 175

IN THE EMPLOYMENT COURT AUCKLAND

ARC 118/10

In the matter of a challenge to a determination of the employment relations authority

Between
Christine Maynard
Plaintiff
and
Bay of Plenty District Health Board
Defendant
Counsel::

Stan Austin, advocate for plaintiff

Gail Bingham, counsel for defendant

Challenge against two decisions of the Employment Relations Authority that the plaintiff was time barred from raising a personal grievance under s114 Employment Relations Act 2000 (raising a personal grievance — 90 day limit) — plaintiff resigned during investigation concerning alleged bullying and claimed constructive dismissal — whether personal grievance had been raised by a series of correspondence — whether personal grievance only mentioned as a possibility in correspondence — failure of solicitor to raise grievance as instructed - if time barred, whether exceptional circumstances existed under s115(b) Employment Relations Act 2000 (exceptional circumstances - failure of agent to raise grievance).

The issues were: whether M had raised a personal grievance within the 90 day period; and if not, whether exceptional circumstances existed justifying the grant of leave to raise a grievance out of time.

Held: It was arguable that M had specified her grievance sufficiently in her resignation letter for the DHB to have addressed it. It was also arguable that in asking for her gratuity and long service leave that she had put the DHB on notice as to how her grievance could be solved.

A grievance could not be raised in respect of a known or anticipated future event. M's employment had not been terminated until her resignation letter had been accepted. Therefore M's letter could not in and of itself have raised a valid grievance for unjustifiable dismissal, as she had been employed by the DHB until her resignation had been accepted.

The settlement letter dated 29 April had in effect raised a personal grievance. While on their own each of the solicitor's letters were insufficient to satisfy the statutory tests, when looked at in combination with M's resignation letter, the documents contained everything necessary to raise a personal grievance. The details of M's complaints along with her desire to resolve the issue early, by payment of gratuity, were conveyed sufficiently to alert the DHB to the fact that M had raised a grievance. M had raised a personal grievance for unjustified dismissal within the 90 day statutory period.

In the alternative, if wrong, then exceptional circumstances existed under s114(4)(b) ERA. M had instructed her solicitor to raise a personal grievance on her behalf if the gratuity was not paid. M had been entitled to place reliance on the fact that her original solicitor would follow her instructions. The test under s115(b) ERA (“where the employee made reasonable arrangements to have the grievance raised by an agent who agent unreasonably failed to ensure that the grievance was raised within the required time) had been met. Section 114(4)(b) ERA (granting extension where just) was satisfied and it was just to grant M's application to raise her personal grievance out of time.

JUDGMENT OF JUDGE B S TRAVIS
1

The plaintiff, Ms Maynard, has challenged two determinations of the Employment Relations Authority (the Authority), which found that she was time- barred from raising a personal grievance against her employer, the Bay of Plenty District Health Board (DHB or defendant). The first, issued on 13 October 2010, 1 concluded that the plaintiff had not raised her grievance with her employer within the 90 day statutory period allowed. The second determination, issued on 15 November 2010, 2 declined the plaintiff's application for leave to raise her grievance after the expiration of that period as it did not find the delay was occasioned by exceptional circumstances.

2

This Court granted leave pursuant to reg 17 of the Employment Court Regulations 2000 for the two challenges to be joined. It also acted on the agreement of Mr Austin, the plaintiff's advocate and Ms Bingham, counsel for the defendant, that the challenges should be determined on the papers filed. These included an affidavit from the plaintiff, several affidavits from the defendant, an agreed bundle of documents and an exchange of written submissions.

Factual background
3

Ms Maynard was employed by the DHB and its predecessors for 34 years. From 1991 her role was that of Laundry Supervisor, Whakatane.

4

She claims that she was unjustifiably constructively dismissed when she resigned her employment with the DHB on 21 February 2010.

5

The plaintiff had been the subject of a 10 week disciplinary investigation, during the course of which she was suspended. Although Ms Maynard sought to raise a personal grievance for that suspension in her statement of problem to the Authority, the suspension claim has subsequently been dropped.

6

The plaintiff sought legal advice after she was suspended and engaged a solicitor to represent her. The solicitor subsequently attended the investigation meetings conducted by the DHB with Ms Maynard.

7

Ms Maynard received the DHB's 30 page report into its investigation on 19 February 2010 and, after reading the report written by Sherida Cooper, the Business Leader for Non-Clinical Support Services, the plaintiff e-mailed Ms Cooper on Sunday 21 February 2010 her resignation, which read as follows:

Dear Sherida

I would hereby like to tender my resignation as Laundry Manager as of today 21/2/2010.

I feel the treatment I have received over the allegations made by Faith LeMalie and your subsequent findings in the draft report I received on 20/ 2/2010 give me no choice and are tantamount to Constructive dismissal.

My health has suffered very badly as my Doctor can confirm and I feel that you have sided with Faith right from the beginning of this whole investigation..I found your manner at each interview intimidating and bullying as well as extremely [one-sided].

I would like to apply for my gratuity which is owing and also the four weeks long [service] leave pay that I should have received after 25 years service. I was never able to have a months leave at once. This can be verified by HR.

Your Sincerely,

Mrs [Christine] Maynard

8

By a letter dated 23 February, Ms Cooper accepted the plaintiff's resignation, confirmed that her final pay and long-service leave payment would be made that day but stated that the plaintiff did not meet the age criterion for payment of a gratuity. It also stated:

I am sorry that you have felt bullied as a result of the organization undertaking and investigation into the allegations of bulling and harassment made by Faith, however as a manager within the organization you must understand the organizations obligation to fully investigation such allegations. The investigation was at all times undertaken in a fair and balanced manner.

9

Correspondence followed between the parties, the relevant content of which is outlined further on in the judgment.

10

The plaintiff claims a personal grievance for unjustified dismissal, which met the statutory requirements, was raised on her behalf. Alternatively she requests that the Court grant leave for her to raise a personal grievance out of time due to exceptional circumstances.

Statutory requirements for raising a personal grievance
11

Section 114(1) of the Employment Relations Act 2000 (the Act) requires that personal grievances must be raised with the employer, unless the employer otherwise consents, within 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later. Here the triggering event was the plaintiff's letter of resignation of 21 February or its acceptance by the defendant on 23 February 2010.

12

Alternatively, s 114(3) provides that employees may apply to the Authority for leave to raise a personal grievance after the 90 day statutory period. The Authority (and this Court on a challenge) may only grant leave if it is satisfied that the delay was caused by exceptional circumstances and that it is just to do so. 3

13

Section 115 of the Act provides specific examples of what may constitute “exceptional circumstances” for the purposes of s 114(4)(a). The list is non- exhaustive. 4 In the alternative, the plaintiff relies on s 115(b), which provides:

For the purposes of s 114(4)(a), exceptional circumstances include—

(b) where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; …

14

The wording of that provision makes it clear that para (b) will apply only where the employee has made reasonable arrangements to have the grievance raised and the agent has unreasonably failed to ensure that it was. 5

Did the plaintiff raise her grievance within the 90 day statutory period?
15

It was accepted by the parties that the final day for Ms Maynard to file a personal grievance within the 90 day period required by the Act was 22 May 2010. To establish that her grievance was raised within the statutory period, Ms Maynard, in her statement of claim, relies on “her correspondence and that of her Solicitor, and the...

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