Lynette Melville v Air New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: Hammond J
• Judgment Date: 26 November 2010
• Neutral Citation: [2010] NZCA 563
• Docket Number: CA500/2010
• Court: Court of Appeal
• Date: 26 November 2010

Between

Lynette Melville

Applicant

and

Air New Zealand Limited

Respondent

[2010] NZCA 563

Court:

O'Regan P, Hammond and Arnold JJ

CA500/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for leave under s214 Employment Relations Act 2000 (appeals on question of law) from an Employment Court decision that the applicant was time-barred from raising a personal grievance against the respondent — applicant was dismissed for serious misconduct — applicant's Union representative failed to raise a personal grievance on her behalf with the respondent — whether the applicant had made reasonable arrangements to ensure that her grievance was raised in time under s115 Employment Relations Act 2000 (further provision regarding exceptional circumstances under section 114) — whether the applicant had established exceptional circumstances under s114(4)(a) Employment Relations Act 2000 (raising personal grievance) for failure to raise the personal grievance within the 90 day time period.

Counsel:

G P Lloyd for Applicant

T P Cleary for Respondent

JUDGMENT OF THE COURT

• A The application for leave to appeal is dismissed.

• B The respondent will have costs as on a standard application for leave to appeal, Band A, and usual disbursements.

REASONS OF THE COURT

(Given by Hammond J)

Introduction

1 This is an application for leave to appeal on what is said to be a question of law, namely a finding by Judge Travis in the Employment Court that Ms Melville was time-barred from raising a personal grievance against her employer, Air New Zealand Ltd, because she had not shown that her failure to raise a personal grievance within the specific time was a result of exceptional circumstances for the purposes of s 114(4)(a) of the Employment Relations Act 2000 (the Act). 1

2 On 19 August 2008 Ms Melville was involved in an altercation with another employee. On 24 March 2009 she was dismissed for serious misconduct. Ms Melville had been suspended for the intervening seven month period before being dismissed. What happened during that altercation, and specifically what the applicant's role in it, has not yet fallen for determination by the Employment Relations Authority (the Authority). The proceeding has not thus far progressed beyond the procedural issue which is now raised before this Court.

3 Section 114(1) of the Act requires that personal grievances must be raised with the employer, unless the employer otherwise consents, within 90 days of the triggering event. Here that was the dismissal on 24 March 2009. That period expired on 21 June 2009. Ms Melville did not file and serve a statement of problem until 27 July 2009. Employees may apply to the Authority for leave to raise a personal grievance after that period, 2 but the Authority 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

4 Section 115 of the Act sets out examples of what may constitute exceptional circumstances for the purposes of s 114(4)(a). The list is non-exhaustive. 4

5 Here the applicant relies solely 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; …

Some further facts

6 To understand Ms Melville's position, and what Judge Travis decided, some further facts are necessary. 5

7 On 19 March 2009, Philip Townsend, who is an organiser employed by the New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc (the Union) wrote to Air New Zealand on behalf of the applicant. That letter described the altercation and put Ms Melville's case that her co-worker was primarily to blame. It recapitulated Air New Zealand's view that Ms Melville's conduct amounted to serious misconduct and that it no longer had trust and confidence in her as an employee. The letter then noted that “serious misconduct” did not necessarily equate to “conduct justifying dismissal” for the purposes of the Act; that Air New Zealand had evinced an intention to dismiss Ms Melville during the period of her suspension and that her fate was already sealed; and expressed the view that Air New Zealand's conduct did not meet the standard of a fair and reasonable employer. It then stated Ms Melville's position that her conduct did not justify dismissal. The letter concluded that the suspension was unjustifiable and that it would be unjustifiable to dismiss Ms Melville.

8 There was then a meeting on 24 March 2009 between Ms Melville and Air New Zealand. Mr Townsend attended. Ms Melville was dismissed at that meeting. Mr Townsend deposed that his and Ms Melville's immediate response was to say “See you in Court”, a point Mr Townsend says he reiterated before leaving the meeting.

9 The next day Mr Townsend went on leave for a month. Regrettably, in his rush to leave he did not send Air New Zealand the Union's standard letter confirming the existence of a grievance. He handed the file over to the Union solicitor, X.

10 On 26 April 2009 Ms Melville emailed Mr Townsend to check progress on her file. She had been aware he had been on leave. That email read:

[W] hen you get back into the office can you see where my case [is] at, as it hit a real stand still. I went to see [X] and that went well, we went half through my file, then had an appointment to see [her] 3 days later. I got there and they had forgotten to phone me and cancel as they were unable to see me.

[A staff person] was to email me a proof to read which never arrived. I left it a couple of weeks and phoned she thanked me for reminding her and said [X] would have it by [F]riday, still not arrived called following [W] and told same again, still not arrived. I know that Air New Zealand has caused the union heaps of headaches with others while you were away. I am just worried there is some “time limit” on us responding and [I] will miss out.

11 Ms Melville deposed that she followed up with the Union on the progress of her file on a number of occasions, through text message and telephone. She was reassured that everything was in hand. Mr Townsend confirmed this in his affidavit. He had assumed that a grievance had in fact been raised.

12 X gave evidence that she worked on the file in Mr Townsend's absence and had commenced writing a statement of problem. There was a period where, owing to illness, she was unable to attend work. When she returned and resumed work on the statement of problem she became aware that there was no submission of grievance letter on the file, because none existed. She had assumed that the personal grievance had been raised and by the time she became aware that it had not the 90 day period had expired.

13 For Ms Melville's part, under cross-examination she: 6

… acknowledged that she was aware that in the collective agreement that bound her there were clauses about how to resolve disputes. She confirmed that she had instructed Mr Townsend to write the 19 March letter and that she was concerned that the manager had decided that she was going to be dismissed. She confirmed that after she was dismissed she did not instruct Mr Townsend to telephone or write to the defendant about taking the dismissal matter further but said something like “where do we go from here” and that she wanted to take the matter to Court. She was keen to pursue an unjustified dismissal grievance and continued to check with the union on progress. She was focussed on getting the union to make sure that her case was being progressed. She was aware of the time limit but did not know

what it was and was concerned she might miss out if something was not done. She had read the 90-day reference in the collective agreement but thought the union would have her best interests at heart. She did not know how to move the matter forward and did not expressly request the union to raise her grievance with the defendant. She left it in the hands of the union to progress the matter. Mrs Melville confirmed that she had told Mr Townsend that she wanted her job back.

14 X gave evidence that at no stage had Ms Melville instructed her to raise a personal grievance, relating to her dismissal.

The Judge's decision

15 The Judge first had to determine what exactly had been “raised” by Ms Melville. The Authority had found that the 19 March letter raised a disadvantage grievance and Judge Travis accepted that. But she had – on the facts – not raised a grievance as to her dismissal. In short, she had raised a grievance relating to the investigation of her case; but not as to dismissal, which was a quite different thing.

16 The Judge then had to decide whether leave should be granted to Ms Melville to raise the grievance after the expiration of the 90 day period. On that point, the Judge accepted that the Union had: 7

unreasonably failed to ensure that...