Idea Services Ltd (in Statutory Management) v Valerie Barker

JurisdictionNew Zealand
CourtEmployment Court
JudgeChristina Inglis
Judgment Date16 July 2012
Date16 July 2012
Docket NumberARC 6/12

[2012] NZEmpC 112

IN THE EMPLOYMENT COURT AUCKLAND

ARC 6/12

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
Appearances:

Paul McBride, counsel for plaintiff

Kerry Single, advocate for defendant

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.

The issues were: whether after her dismissal, ISL owed B ongoing good faith obligations under s4 ERA (parties to employment relationship to deal with each other in good faith); whether B was entitled to unilaterally waive privilege over her advocate's without prejudice letter; and, whether the totality of communications sufficiently specified B's personal grievance to enable ISL to address it.

Held: There was no scope to read into s4 a requirement that its obligations continued once the employment relationship had ended. It was notable that s4(1A)(c) specifically conferred an obligation to act in good faith on an employer who was proposing to make a decision that would or was likely to have an adverse effect on the continuation of employment, but imposed no such obligation following termination. Other provisions which applied following the expiration of the employment relationship specifically imposed an obligation of good faith.

Section 4 ERA expressly provided that the obligation of good faith attached to an existing employment relationship. The obligation was directed at supporting productive employment relationships. In the absence of an employment relationship or any express statutory requirement, no statutory obligation of good faith applied. ISL therefore did not breach the good faith obligation in failing to respond to communications from and on behalf of B.

The Authority had broad discretion to admit or to refuse to admit evidence. However, the power to admit evidence not admissible in a court of law did not authorise a Tribunal to override privilege ( Complaints Assessment Committee v Medical Practitioners Disciplinary Tribunal). Documents marked without prejudice and which formed part of negotiations between parties were prima facie privileged even if they merely initiated the negotiations and even if the document itself did not contain an offer to settle. The consent of both parties was required in order to allow into evidence the contents of statements made as part of an attempt to settle a dispute. This was because a joint privilege was held by the parties.

The 16 November 2010 letter was sent following B's dismissal on a without prejudice basis and was clearly intended to initiate settlement discussions for resolving matters between the parties. The fact that no grievance had been formally filed at the stage did not undermine the privileged status of the communication, which was clearly directed at settling the dispute. The Authority therefore, erred in finding that B could unilaterally waive the privilege attached to the letter.

Section114(2) ERA (personal grievance raised as soon as the employee made or took reasonable steps to make the employer or representative aware of the personal grievance for the employer to address) did not require the employee to specify the nature of the relief sought in relation to the alleged grievance. The provision focussed on the alleged grievance and the extent to which the employee had drawn or reasonably attempted to draw that grievance to the employer's attention. The underlying purpose of the personal grievance procedures was to identify and address employment relationship issues expeditiously and by direct communication between the parties to it. The informal, non-technical, nature of the personal grievance procedures relating to raising a grievance told against an interpretation that required an employee to specify the precise nature of the remedy or remedies they sought.

At the 17 September meeting, ISL was simply advised that the B would be taking “action” under ERA. The subsequent letter of 10 October gave no indication of the factors that B contended made her dismissal unjustified. The 16 November letter was privileged and could not be admitted in evidence. While ISL had been aware that B took issue with her dismissal, it had no way of knowing (based on the information communicated to it) why that was so, to enable it to address B's concerns. The communications either individually or when taken together did not meet the threshold requirements in s114(2) ERA. B did not adequately specify the nature of the alleged personal grievance which she wanted ISL to address.

Challenge succeeded.

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 Police4 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...

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