Idea Services Ltd v Valerie Barker

• Jurisdiction: New Zealand
• Judge: D Ford
• Judgment Date: 05 March 2013
• Court: Employment Court
• Docket Number: ARC 50/12
• Date: 05 March 2013

In the Matter of an application for rehearing

Between

Idea Services Limited

Plaintiff (Respondent in rehearing)

and

Valerie Barker

Defendant (Applicant in rehearing)

[2013] NZEmpC 24

ARC 50/12

IN THE EMPLOYMENT COURT AUCKLAND

Application for rehearing on ground of risk of miscarriage of justice — Employment Relations Authority had ruled in favour of employee — Employment Court held that communications by or on behalf of employee did not individually nor collectively specify the nature of the personal grievance — personal grievance therefore not raised within the statutory time period — employee argued that Court overlooked the filing of statement of problem and focussed only on the communications — statement of claim before the Court had raised four issues which did not include the filing of the statement of problem — whether the Court had overlooked the filing of statement of problem with the Authority — whether in the absence of a cross-challenge, the filing was an issue before the Court.

Appearances:

Les Taylor, counsel for the plaintiff (respondent)

Peter Cranney and Anthea Connor, counsel for the defendant (applicant)

JUDGMENT OF JUDGE A D Ford

The application

1 The defendant, Ms Valerie Barker, has made application for a rehearing of this proceeding which was heard by Judge Inglis in May 2012. 1 The application is made pursuant to cl 5 of sch 3 to the Employment Relations Act 2000 (the Act). The stated grounds are, “that there is a real or substantial risk a miscarriage of justice may have occurred.”

2 The issue in the case was whether the defendant had raised a personal grievance within the 90-day time frame specified in the Act. In a determination 2 dated 19 September 2011, the Employment Relations Authority (the Authority) concluded that Ms Barker had raised her personal grievance within time. The

plaintiff then successfully challenged that determination in this Court. The defendant in her present application now claims that, “for various reasons the Court overlooked that the personal grievance had been raised within the 90 days period by the filing of a statement of problem in the Authority, and the subsequent acknowledged service of it by the Authority on the respondent within 90 days.”

3 The provision in the Act allowing for retrials is cl 5(1) of sch 3 which provides:

5 Rehearing

(1) The Court has in every proceeding, on the application of an original party to the proceeding, the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay the proceedings.

4 Normally an application for a rehearing will be heard by the Judge before whom the proceedings were originally heard but that is not a statutory requirement nor is it invariably the case. Given her other fixture commitments, Judge Inglis considered it appropriate for this application to be referred to myself.

Background

5 At all relevant times Ms Barker, who formerly lived in Taupo and is now residing in Australia, was employed by the plaintiff (Idea Services) as a community service worker at its Lakeland Branch. Her employment came to an end on 17 September 2010 when she was dismissed for alleged misconduct. At a meeting held on 17 September 2010, Ms Barker's then union representative, Ms Jacquie Hurst, an organiser with the Service and Food Workers' Union, advised the Idea Services Rotorua Manager that Ms Barker would be bringing a personal grievance.

6 Under s 114(1) of the Act Ms Barker had 90 days in which to raise her personal grievance with Idea Services. The 90-day period expired on 16 December 2010. Section 114(2) of the Act provides that:

114 Raising personal grievance

…

(2) … a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.

7 On 7 December 2010, Mr Kerry Single, who was then acting as Ms Barker's advocate, lodged a statement of problem with the Authority. Significantly in terms of the present case, the statement of problem had an attachment headed “The facts that have given rise to the problem” which consisted of a 19-paragraph outline of the facts giving rise to Ms Barker's alleged personal grievance (the “factual statement”). The Authority forwarded a copy of the statement of problem, including the factual statement, to Idea Services on the same day. As service of the statement of problem, containing the factual statement, was effected prior to 16 December 2010, that should have ended any speculation as to whether or not Ms Barker had raised her personal grievance within the 90-day limitation period. However, it did not.

8 The next development was on 9 December 2010, Mr Paul McBride, who was then acting as counsel for Idea Services, sent a letter to the Authority protesting the Authority's jurisdiction to deal with the application. The protest was based on s 42 of the Corporations (Investigation and Management) Act 1989 which provides that no person shall commence or continue any action or other proceedings against a corporation subject to statutory management unless leave is first obtained from the Statutory Manager or the High Court.

9 On 16 December 2010, the Authority advised the parties that leave would need to be obtained from the Statutory Manager in order to continue the action and in the meantime the file “will be suspended until further notice from the applicant”. On 25 February 2011, Sir John Anderson, the Statutory Manager granted leave to Ms Barker to proceed. On 11 May 2011, the Authority issued a minute dismissing a named second respondent as a party and requiring Ms Barker to file an amended statement of problem. Idea Services was directed to file a statement in reply following receipt of the amended statement of problem.

10 In its statement in reply dated 8 June 2011, Idea Services through its counsel Mr McBride, alleged that Ms Barker had not raised a personal grievance in accordance with s 114 of the Act. Mr McBride dealt at some length with the facts of the case leading up to the dismissal. On the issue of whether or not a personal grievance had been raised, counsel referred to a letter the union representative, Ms Hurst, had sent to Idea Services dated 10 October 2010 which he alleged failed to raise any personal grievance because it contained insufficient detail for the employer to address any complaint. The statement in reply then said:

2.31. The Applicant did not otherwise raise any personal grievance about the matters now complained of within the period of 90 days after the events giving rise to same, and nor does the Respondent consent to her doing so out of time.

11 No reference was made in Idea Services' statement in reply to the statement of problem and factual statement which had been filed and served in December 2010, within the 90-day limitation period.

12 The letter from the union organiser dated 10 October 2010, which was referred to in the statement in reply assumed some significance in the narrative. After confirming that she had been authorised to represent Ms Barker in the matter, Ms Hurst stated in that letter:

…

We take this opportunity to invoke, facilitate and submit a Personal Grievance. We confirm in writing our verbal submitting of a Personal Grievance on the 17 August 2010 at 11.35 a.m.

We invoke the Personal Grievance as follows:

• 1. Section 103(1)(a) of the Employment Relations Act and Amendments 2000 unjustifiable dismissal.

• 2. Section 103(1)(b) of the Employment Relations Act and Amendments 2000 disadvantage by the unjustifiable actions of the employer (Idea Services)

…

The letter also stated that Ms Barker would be seeking remedies under s 123 of the Act.

13 The reference to Ms Hurst's letter to “17 August” was an unfortunate error. Ms Barker was dismissed on 17 September 2010 and the documentary evidence before the Court established that the “verbal” submissions 3 Ms Hurst referred to took place on 17 September 2010. There was another problem with the letter of

10 October 2010. During the Authority investigation, it was alleged on behalf of the defendant that the letter had had 24 pages of attachments, including the factual statement. 4 The Authority stated in its determination that if the letter had contained the attachments referred to then that alone would have constituted the raising of a personal grievance but it concluded, on the evidence before it, that the letter had not been accompanied by any enclosures or attachments. That finding is now common ground

The Authority determination

14 On 13 July 2011, the Authority issued a minute confirming that it would make a determination on the papers on the preliminary issue of whether a personal grievance had been raised in time. A timetable was fixed for the filing of written submissions. The minute also made reference to a without prejudice letter dated 16 November 2010 which Ms Barker's advocate, Mr Single, had written to Idea Services. This letter alleged that a personal grievance had been raised on behalf of Ms Barker by Ms Hurst in her letter of 10 October 2010 and he suggested an informal without prejudice meeting to progress the issues. The November letter had been attached to Ms Barker's statement of problem and Mr Single wished to rely on it. An issue arose as to whether the letter of 16 November 2010 could be relied upon because it had been headed “without prejudice”. Another Authority Member gave a ruling that, as Mr Single was the author of the letter, he was entitled to waive the without prejudice privilege.

15 Written submissions were presented to the Authority on behalf of both Ms Barker and Idea Services. In his submissions, Mr Single correctly noted that the dismissal had occurred on 17 September 2010 and he made mention of the fact that the statement of...