Christine Maynard v Bay of Plenty District Health Board

• Jurisdiction: New Zealand
• Judge: B S TRAVIS
• Judgment Date: 22 December 2011
• Court: Employment Court
• Docket Number: ARC 118/10
• Date: 22 December 2011

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

[2011] NZEmpC 175

ARC 118/10

IN THE EMPLOYMENT COURT AUCKLAND

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).

Counsel::

Stan Austin, advocate for plaintiff

Gail Bingham, counsel for defendant

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 communications of the Boards officers and her Solicitor”. In the Authority Ms Maynard was more specific on what matters should be considered in deciding whether her grievance was raised in time.

16 It was submitted that the Authority must consider the fact that prior to her resignation she had been the subject of a ten week disciplinary investigation. It was

also submitted for Ms Maynard that regard should be had to her letter of resignation, and letters of 7 and 20 April written to the DHB on her behalf by her then solicitor, the DHB's responses to all of those letters, and subsequent communications between the parties regarding mediation. The Court has held that all relevant communications may be looked at to determine whether a grievance has been raised. 6

17 In his letter to the DHB dated 7 April 2010, her solicitor expressed his disappointment that “you accepted a resignation from our client directly without first referring the matter to the writer” and “[w]e would have expected an employer acting reasonably to have declined to accept that resignation until such time as Ms Maynard had properly discussed the matter with her counsel.” Her solicitor follows this by stating: “We take this issue no further at this time but our client reserves the right to re-visit the issue should it become necessary.”

18 Her solicitor also discussed in that letter the DHB's decision declining payment of a gratuity to Ms Maynard, claiming that she had been unfairly disadvantaged by this decision. Further, her solicitor states that Ms Maynard's doctor's assessment, immediately after she tendered her resignation, that the plaintiff was “clinically not well enough to continue her job” was a “determining factor in our client's decision to resign her employment.”

19 The plaintiff's solicitor concludes his letter of 7 April by inviting the DHB to “re-visit [its] decision with respect to payment of our client's gratuity payment” and “[i]f … the payment is not made [within seven days of the date of the letter] our client may raise a personal grievance in relation to the way her employment ended and seeking payment of her gratuity payment in any event.”

20 The defendant responded in a letter written by Ms Gail Bingham, GM Governance and Quality, dated 12 April 2010. In this Ms Bingham claims the DHB was “fully within its rights to accept Ms Maynard's resignation” and, as Ms Maynard had been assisted by legal counsel throughout the investigation process, “[i]t was therefore reasonable for the DHB to presume that she had consulted with [her

counsel] prior to making this decision [to resign].” Ms Bingham also confirmed that the plaintiff did not qualify for a retirement gratuity

21 In a...