KAREN PATRICIA PIVOTT v SOUTHERN ADULT LITERACY INCORPORATED NZEmpC CHRISTCHURCH

• Jurisdiction: New Zealand
• Judge: AD Ford
• Judgment Date: 12 December 2013
• Court: Employment Court
• Docket Number: CRC 40/12
• Date: 12 December 2013

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

BETWEEN

Karen Patricia Pivott

Plaintiff

and

Southern Adult Literacy Incorporated

Defendant

[2013] NZEmpC 236

CRC 40/12

IN THE EMPLOYMENT COURT CHRISTCHURCH

Challenge to a determination of the Employment Relations Authority which rejected the plaintiff's claim that she had been constructively dismissed but upheld two of her alleged disadvantage grievances — the plaintiff had been employed on a series of fixed term contracts — claim related to grievances over the course of her employment — Authority held historic grievances were still live at the time of plaintiff's resignation so that grievance had been raised within the 90 day period under s114 Employment Relations Act 2000 (“ERA”) (raising a personal grievance) — whether the grievance had been raised within time — whether it was reasonably foreseeable that the plaintiff would resign as a result of the alleged breaches.

Appearances:

Patrick O'Sullivan, advocate for the plaintiff

Mary-Jane Thomas, counsel for the defendant

JUDGMENT OF JUDGE AD Ford

Introduction

1 Up until 2010 the defendant was officially known as the Southland Adult Learning Programme Inc. Throughout the hearing it was referred to as “SALP” and for convenience I will continue to refer to it by that description. The plaintiff, Ms Karen Pivott, was employed by SALP as Workplace Coordinator under a fixed-term individual employment agreement which ran from 1 August 2006 to 31 July 2007. The agreement was then rolled over for a further 12-month term expiring on 31 July 2008. The parties signed a new fixed — term individual employment agreement which took effect from 1 August 2008. Thirteen days later Ms Pivott resigned. In a letter dated 12 October 2008 she raised a personal grievance alleging that she had been unjustifiably constructively dismissed and unfairly disadvantaged. The issue in this Court is whether her claim of constructive dismissal has been made out.

2 In the letter raising her personal grievance and in her statement of claim, Ms Pivott appeared to raise a number of disadvantage grievances going back over the course of her employment. The problem she faced in this regard, however, was that s 114(1) of the Employment Relations Act 2000 (the Act) provides that, subject to stated exceptions, a personal grievance must be raised within a 90-day period. One of the exceptions is where the employer consents to a personal grievance being raised outside of this period. This issue was clarified by the parties' representatives at the hearing. Counsel for the defendant, Ms Thomas, made it clear that the defendant had never consented to any disadvantage grievance being raised out of time but she had no objection to the various incidents Ms Pivott had complained about being taken into account by the Court as part of the “contextual background” to any consideration of the plaintiff's constructive dismissal claim. Mr O'Sullivan, advocate for the plaintiff, confirmed that the matters raised should be dealt with on that basis.

3 There is another preliminary issue relevant to the pleadings. In her second amended statement of claim, in addition to the constructive dismissal claim under the Act, the plaintiff sought alternative relief under the Contractual Remedies Act 1979 and raised several “equitable causes of action in estoppel”. These matters were not pursued at the hearing, however, and did not figure in Mr O'Sullivan's extensive (667 paragraphs) closing submissions. I, therefore, put them to one side. On that basis, the sole issue before the Court is whether the plaintiff has made out her alleged unjustified constructive dismissal claim.

4 The case involved another complication. At all material times Ms Pivott's advocate, Mr O'Sullivan, had a close personal involvement with SALP. Ms Pivott and Mr O'Sullivan both served on the SALP Committee — Ms Pivott as Chairperson and Mr O'Sullivan as a committee member. While Ms Pivott was employed by SALP as Workplace Coordinator, Mr O'Sullivan was employed as a grammar tutor. Mr O'Sullivan, who had joined the SALP committee in April 2007, resigned from the committee on 7 May 2008 and from his tutoring employment position on 4 July 2008. Ms Pivott resigned as chairperson of the committee on 29 April 2008 and she resigned from her employment position as Workplace Coordinator on 14 August 2008.

5 Both Mr O'Sullivan and Ms Pivott made claims in the Authority alleging disadvantage grievances and constructive dismissal. The claims were investigated and dealt with together. In a relatively lengthy determination (166 paragraphs) dated 17 October 2012 1 the Authority upheld Mr O'Sullivan's claim that he had been unjustifiably constructively dismissed. He did not seek lost wages but sought compensation for hurt and humiliation in the sum of $10,000. The Authority awarded him $5,000, which was subsequently reduced to $2,500 on account of his contribution to the situation that gave rise to his grievance. The contribution was said to be his provocative communication style.

6 Mr O'Sullivan did not challenge the Authority's determination but I refer to his background involvement in this introductory section of my judgment because it had all the hallmarks of the dangerous conflict of interest-type scenario envisaged by the Supreme Court in Vector Gas Ltd v Bay of Plenty Energy Ltds 2 There, Wilson J observed that: 3

Whatever the court or tribunal in which they are appearing, it is undesirable for practitioners to appear as counsel in litigation where they have been personally involved in the matters which are being litigated. In that situation, counsel are at risk of acting as witnesses and of losing objectivity.

7 As well as acting as Ms Pivott's advocate, Mr O'Sullivan ended up giving evidence on her behalf. Although the statements in Vector Gas were directed towards legal counsel who are subject to strict professional obligations to provide independent judgment and advice on behalf of their clients, 4 these cautionary observations should nevertheless be of equal import to non-practicing advocates representing parties in this Court. I record, however, that to his credit Mr O'Sullivan acted professionally throughout the hearing itself although there were occasions

when, perhaps understandably, he obviously had some difficulty in maintaining his objectivity. It was clear from the evidence, nevertheless, that Mr O'Sullivan had played a significant role in many of the crucial events the Court heard about in relation to Ms Pivott's claim

8 In its determination of 17 October 2012, the Authority rejected Ms Pivott's claim that she had been constructively dismissed but it upheld two of her alleged disadvantage grievances, namely her exclusion from attendance at the national hui and revocation of her access to SALP committee meetings. It concluded that she had suffered moderate stress on account of these grievances and it awarded her $7,500 under s 123(l)(c)(i) of the Act for hurt and humiliation.

9 Ms Pivott challenged by way of a de novo hearing the whole of the Authority's determination as it related to her claim. In doing so she put at risk the Authority's finding and the award made in her favour of $7,500 in respect of the disadvantage grievances. In [2] above I set out my conclusions, which were accepted by Ms Pivott's advocate at the hearing, namely, that Ms Pivott's alleged disadvantage grievances had not been raised within the 90-day statutory limitation period. The Authority had dealt with the limitation point interpretation in this way:

[100] Ms Pivott raised her personal grievance by way of a letter from her advocate, Mr O'Sullivan, on 12 October 2008. Neither of the issues had been resolved to Ms Pivott's satisfaction when she had resigned and, as the issues were failures whose effects were ongoing, they continued to be live when the grievance was raised. I therefore accept that personal grievances were raised in time in respect of these two issues.

10 With respect, this approach by the Authority misapplies the law. Section 114(1) of the Act, which stipulates that the grievance must be raised within a period of 90 days, provides that the period of 90 days begins, “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 latter …”

11 In relation to the two disadvantage grievances upheld by the Authority, Ms Pivott pleaded in her statement of claim that she had been officially informed on 20 June 2008 that she would not be attending the national hui and that she had been told in April 2008 that she would not be permitted to attend board meetings. Those are the respective dates on which the 90-day period commenced to run. The letter of 12 October 2008 fell outside the 90-day period and, as noted above, at no stage did the defendant consent to the grievances being raised outside the 90-day period. It therefore follows, that this Court is not prepared to uphold the plaintiff's alleged disadvantage grievances.

12 Finally in this introductory section, I make brief reference to the delays associated with this case. The Authority explained the background in these terms:

[5] The events referred to below took place in 2008. The reason that the personal grievances took four years to come before the Authority involves a concatenation of events including, but not limited to, a prolonged skirmish over discovery between the parties, a foray into the Employment Court, the February 2011 Christchurch earthquake and the transfer to another registry of the Member originally dealing with the matter …

13 The initial statement of claim was filed in this Court on 25 October 2012. It was anticipated that the hearing could have been completed in April 2013 but, unfortunately, the principal witness for the defendant, Ms Nellie Garthwaite,...