Idea Services Ltd (in Statutory Management) v Valerie Barker

• Jurisdiction: New Zealand
• Judge: Christina Inglis
• Judgment Date: 16 July 2012
• Court: Employment Court
• Docket Number: ARC 6/12
• Date: 16 July 2012

In The Matter OF a challenge to a determination of the Employment Relations Authority

Between

Idea Services Limited (In Statutory Management)

Plaintiff

and

Valerie Barker

Defendant

[2012] NZEmpC 112

ARC 6/12

IN THE EMPLOYMENT COURT AUCKLAND

Non de novo challenge to determination of Employment Relations Authority on personal grievance and for declaration that defendant did not raise personal grievance within the 90 days timeframe specified in s114 Employment Relations Act 2000 (“ERA”) (raising personal grievance) — employee dismissed on 17 September 2010 — sent letter on 10 October to employer advising that she would be pursuing remedies under s123 ERA (remedies in relation to personal grievance) — on 16 November, without prejudice letter sent seeking informal without prejudice meeting to resolve matters — employer declined offer — whether employer owed employee ongoing good faith obligations under s4 ERA (parties to employment relationship to deal with each other in good faith) after dismissal — whether employee entitled to unilaterally waive privilege over her advocate's without prejudice— letter — whether the totality of communications sufficiently specified employee's personal grievance to enable employer to address it.

Appearances:

Paul McBride, counsel for plaintiff

Kerry Single, advocate for defendant

JUDGMENT OF JUDGE Christina Inglis

Background

1 Ms Barker was employed by Idea Services Limited (ISL) as a community service worker. Issues subsequently arose and an investigation was formally commenced. A number of meetings took place between Ms Barker and her manager, Ms Hudson, culminating in a meeting on 17 September 2010. At the meeting Ms Barker was advised that she was being dismissed with two weeks' pay in lieu of notice. Meeting notes record Ms Hurst (Ms Barker's union representative) as saying:

Thank you Merepeka for this outcome, this is to let you know that we will be taking action for [Ms Barker] under s 103 of the CEA Personal Grievance and also the Health and Safety employment act.

2 On 15 September 2010, Ms Barker had written a brief letter to Ms Hudson. She advised:

I am taking this opportunity to inform you that I will be pursuing a Personal Grievance against yourself as the Lakeland Branch, Community Service Manager.

3 Her letter was acknowledged by Ms Hudson on 23 September.

4 On 10 October 2010, Ms Hurst wrote to ISL advising that the opportunity was being taken to “invoke, facilitate and submit a Personal Grievance”, and that the verbal submitting of a personal grievance on 17 August 1 was confirmed. 2 Ms Hurst went on to refer to various sections of the Employment Relations Act 2000 (the Act) and the Health and Safety in Employment Act 1992 that she said the grievance related to. She advised that Ms Barker would be seeking remedies under s 123 of the Act and advised that “a hard copy of the communication will be posted.”

5 The following month, on 16 November 2010, a without prejudice letter was sent to ISL on Ms Barker's behalf. It refers to a personal grievance being raised on 10 October 2010, and sought an informal without prejudice meeting to discuss how matters might be resolved. In the letter, Mr Single, Ms Barker's advocate, said:

Briefly the issues are around the manner in which your Community Service Manager, Linda Hudson has been treating both our clients in a way which can only best be described as bullying and harassment.

6 ISL, now in statutory management, did not take up the offer of a meeting. A grievance was subsequently filed with the Employment Relations Authority.

7 Mr McBride, on behalf of ISL, took issue with the plaintiff's reliance on the without prejudice letter of 16 November 2010. He advised the Court at hearing that Ms Robinson (the Authority member dealing with the grievance) referred the without prejudice letter to another Authority member for determination as to its admissibility, and that the parties were not given an opportunity to be heard prior to that issue being determined. Ms Oldfield, the Authority member dealing with the admissibility

issue, set out her reasons for concluding that it could be placed before the Authority in a brief minute. She determined that:

The author of a document headed “without prejudice” may waive privilege provided the contents of the document do not make express or implied reference to without prejudice representations by other parties to the proceedings.

The letter makes no such references and on that basis I am satisfied that Mr Single as author of the letter is entitled to waive privilege.

I therefore conclude that it may be submitted in evidence before the Authority.

The Authority's determination

8 In the event, the Authority found 3 that Ms Barker could have raised a personal grievance verbally on 17 September 2010 because her dismissal was effective from that date but that she had failed to adequately particularise her grievance at the meeting. It found that the statement that Ms Barker would be bringing a grievance was insufficient, as it did not serve to make her employer sufficiently aware of the nature of the grievance or the remedies for resolving the grievance in terms of s 114(2).

9 The Authority further considered that the letter of 10 October 2010 was not, of itself, sufficient to put the employer on notice as to the nature of Ms Barker's grievance or what relief she was seeking, referring to Creedy v Commissioner of Police 4 in support. The 10 October letter referred to a document which would follow, and that document contained “comprehensive … details of the remedies…” 5 but it did not accompany the letter. The letter on its own was not, it was held, sufficient. If it had included the additional documentation, the Authority would have held otherwise. Nor was the Authority drawn to an argument that the without prejudice letter of 16 November 2010 was sufficiently particularised to raise a personal grievance.

10 While finding that none of the steps taken by and on Ms Barker's behalf individually were sufficient to raise a personal grievance within the requisite timeframe, the Authority held that the verbal statement on 17 August (in fact September) 2010 and the letters of 10 October and 16 November 2010, taken in conjunction with each other and viewed objectively, formed a totality of communications and that: “Ms Barker had specified sufficiently the personal grievance to enable ISL to address it.” 6

11 The Authority also found that ISL: “consistently with a duty of good faith [should have] responded to [the letters of 10 October and 16 November]by requesting specific details if it was unsure of the nature of the grievance.” 7

The challenge

12 The plaintiff challenges the Authority's determination on a non de novo basis. There are four particular findings that the plaintiff takes issue with:

• First, the Authority's determination that the plaintiff was under an obligation of good faith following the expiration of the employment relationship;

• Second, the Authority's finding that reliance could be placed on the without prejudice letter;

• Third, that in advising that the defendant will be seeking remedies under s 123 of the Act the defendant had sufficiently detailed the remedies sought;

• Fourth, the finding that the totality of communications between the parties (being the verbal statement at the meeting on 17 September 2010, and the letters dated 10 October and 16 November 2010)

• specified sufficiently the personal grievance to enable the plaintiff to address it.

13 The plaintiff seeks a declaration that the defendant did not raise a personal grievance within the 90 days timeframe specified in s 114 of the Act.

14 Because this is a non de novo challenge, the focus is on the Authority's determination rather than the entire matter that was before the Authority. The Court is limited to hearing the issues that were actually decided by the Authority, which are the subject of challenge. 8 No cross-challenge was filed. In so far as the defendant takes issue with various other findings of the Authority, that is outside the scope of the challenge before the Court and I put them to one side.

Ongoing obligation of good faith?

15 Ms Barker's employment came to an end on 17 September 2010. At the meeting on that date Ms Barker was advised that she was being dismissed immediately with two weeks' pay in lieu of notice. Mr McBride submits that the Authority erred in finding that ISL had an obligation to engage with Ms Barker after her dismissal, pursuant to s 4.

16 Section 4 of the Act provides:

• (1) The parties to an employment relationship specified in subsection

• (2)—

  • (a) must deal with each other in good faith; …

• (2) The employment relationships are those between—

  • (a) an employer and an employee employed by the employer: …

17 The simple point advanced by Mr McBride is that from 17 September 2010 Ms Barker was not an employee of ISL, ISL was not in an employment relationship with her, and accordingly owed her no ongoing obligations of good faith under s 4.

18 Mr Single took issue with this submission. He said that while there was no express provision relating to the ongoing obligation of good faith, it would be contrary to the underlying purposes of the Act for an ex-employer to do nothing and simply wait for the 90 day period to expire. While there is some force in that submission, the starting point for any analysis must be the wording of the section. It is clear – the mutual obligations of good faith imposed by s 4 apply to those in an employment relationship.

19 I do not consider that there is scope for arguing that the statutory requirements imposed by s 4 continue to apply once the employment relationship has ended. To do so would be to read into the Act words that are not there. It is notable that s 4(1A)(c) specifically confers an obligation to act in good faith on an employer who...