Melville v Air New Zealand Ltd

JurisdictionNew Zealand
CourtEmployment Court
Judgment Date08 July 2010
Date08 July 2010
Docket NumberARC 18/10

[2010] NZEMPC 87

In The Employment Court Auckland

ARC 18/10

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

Lynette Melville
Air New Zealand Ltd

Greg Lloyd, counsel for the plaintiff

Tim Cleary, counsel for the defendant

Challenge to Employment Authority determination that a grievance was not raised within the 90 day period required by s114 Employment Relations Act 2000 and, in the alternative, given the failure of the union representatives to raise the grievance, whether leave should be granted under s114(3) to raise it after the expiration of the period on the grounds that the plaintiff took reasonable steps to ensure it was raised and it would be just to grant leave.

Held: The wording of s114 referred to the raising of a grievance about an event that had occurred or was occurring. It did not allow for a known or even anticipated future event, let alone a speculative future event (such as a dismissal) to be raised prior to the event occurring. The letter written prior to the dismissal meeting referred to the likelihood of a dismissal and indicated that it was going to be challenged, but it could not in itself amount to the raising of the grievance in terms of s114(2).

The key wording in s114(2) was that a grievance is raised “as soon as the employee has made, or had 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”. The grievance must be specified sufficiently to enable the employer to address it. The wording used at the meeting (“see you in court”) was equivocal and could relate to a disadvantage grievance already raised. The wording did not on its face raise a new grievance, based on the dismissal, that was sufficiently clear to have enabled Air NZ to address it. There was no material on which Air NZ could assume what remedies were sought and in particular, whether M was seeking reinstatement. The personal grievance alleging an unjustifiable dismissal was not raised within the 90—day period.

On the issue of whether leave should be granted outside the 90 day period, the Supreme Court confirmed in Commissioner of Police v Creedy that in order to obtain leave under s114(4), two conditions must be satisfied; first the delay must have been occasioned by “exceptional circumstances”; and, second, the justice of the case must require an extension of time. M argued that her case fell within s115(b) which applied (exceptional circumstances under s114) where the employee had made reasonable arrangements to have the grievance raised and the agent had unreasonably failed to ensure that it was. The Court accepted that the union had unreasonably failed to raise the grievance. In terms of the first element, however, M was aware of the 90 day limit. M failed to make reasonable arrangements to ensure that her grievance was raised in time, giving instead general and broad instructions for the union to take the necessary steps to pursue her grievance.

Because the issue was determined by the failure of M to bring herself within s115(b), the Court did not need to decide if it was just to grant leave. However it noted that considerations in balancing justice must necessarily be based on the evidence put before it and that normally this enquiry would involve addressing the merits. Although this point did not have to be determined, in view of the lack of material on which even a preliminary view of the merits of the grievance might be based, it may well have been difficult to have found in M's favour on this second requirement.


The plaintiff, Mrs Lynette Melville, has challenged a determination of the Employment Relations Authority on a preliminary issue, whether she had raised a personal grievance concerning her dismissal by the defendant within the 90—day period required by s 114 of the Employment Relations Act 2000 (the Act).


As an alternative, if the Court was to find that her grievance was not submitted in time, then she sought leave under's 114(3) of the Act to raise it after the expiration of that period. The grounds for the leave application were said to be that Mrs Melville took reasonable steps to ensure the grievance was raised within time; she was entitled to rely on her representative to do so on her behalf; she would suffer a significant detriment if unable to pursue the grievance and, if leave was granted, the defendant would not suffer any detriment that would outweigh her detriment.


The parties filed a brief agreed chronology of events, which indicates that on 19 August 2008 there was an incident involving Mrs Melville and a co—worker. Following the incident Mrs Melville was suspended for some seven months in spite of repeated requests that she be returned to her employment.


On 19 March 2009, Philip Townsend, an organiser employed by the New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc (the union) wrote to the defendant. The letter sets out the following. Mrs Melville was assaulted at work on 19 August 2008 by a colleague who resigned soon after. It examined the circumstances of the assault in detail laying the blame on the co—worker who allegedly grabbed the plaintiff from behind. The defendant had expressed the view that Mrs Melville had acted inappropriately and that this amounted to serious misconduct and, as a result, the defendant no longer had trust and confidence in her as an employee. Mr Townsend stated the defendant had equated “serious misconduct” with “conduct justifying dismissal”, which was not the legal test for justification set out in s 103A of the Act. The defendant's conduct towards Mrs Melville did not, he claimed, meet the standard of the fair and reasonable employer. The defendant had consistently over the past seven months demonstrated an intention to dismiss the plaintiff and her fate was already sealed. The defendant was asked to reconsider this position. Under the heading “Dismissal” it states:

Even if there is considered to be some degree of contributory fault on her part, and we think that would be small, this employment relationship is sustainable and Lynette's actions do not justify dismissal.


The letter concludes, under the heading “ The Personal Grievance”, that the suspension was an unjustifiable action for which the plaintiff should be compensated and states:

It is never too late to revise ones views of a situation, and we invite you to do so and to conclude that it would be unjustifiable to dismiss Lynette from the employment.


The plaintiff and Mr Townsend attended a final meeting on 24 March 2009 at which the plaintiff was dismissed for serious misconduct. Mr Townsend's affidavit evidence was that his immediate response to the defendant's managers was to say: “See you in Court”. As the plaintiff and Mr Townsend were leaving, the plaintiff's immediate manager, Nic Csongor, called out, “Thank you, see you”. Mrs Melville and Mr Townsend responded “its not over yet” and Mr Townsend stated “we'll be seeing you in Court”. The following day Mr Townsend was due to go on leave for a month and did not submit a standard letter to the defendant confirming the existence of a grievance because he was rushing to tidy up loose ends before leaving. Prior to leaving the union office he handed the file back to the union solicitor, Anne—Marie McInally, who had assisted Mr Townsend to prepare the letter of 19 March.


Mrs Melville was aware that Mr Townsend was going on leave for a month and on 26 April 2009 she emailed him to check on the progress of the grievance. The relevant part of her email stated:

[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 AnneMarie and that went well, we went half way 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.

Roseanne(?) 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 [I] would have it by [F]riday, still not arrived called following [W]ednesday 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 that there is some “time limit” on us responding and [I] will miss out.

[H]ope you can help.


Mrs Melville deposes that she continued to send text messages asking what was happening and that Mr Townsend's responses were usually by phone rather than text and the message he gave was “be patient”. Mrs Melville had several appointments with Ms McInally, two of which were cancelled and there was a period of time when Ms McInally was not available. Mrs Melville and her husband continued to contact the union by phone to find out what was happening and in those calls she stressed her concern that there was a time limit approaching, although she was not sure of the date when it would take effect. She kept getting reassurances that everything was under control. Mr Townsend confirmed in his affidavit that he did reassure Mrs Melville that everything was under control on the several occasions she spoke to him by telephone because he assumed everything had been done at the appropriate times.


Ms McInally gave evidence that she had assisted Mr Townsend to prepare the 19 March letter and received the file from him on 24 March when he went overseas on leave. She began preparation of a statement of problem but the process was delayed by a series of urgent proceedings. Then, on 8 June 2009, her mother passed away and in the following weeks Ms McInally became unwell and was unable to attend work. When she returned to work she resumed preparation of the statement...

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