Melville v Air New Zealand Ltd

• Jurisdiction: New Zealand
• Judge: B S TRAVIS
• Judgment Date: 08 July 2010
• Court: Employment Court
• Docket Number: ARC 18/10
• Date: 08 July 2010

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

BETWEEN

Lynette Melville

Plaintiff

and

Air New Zealand Ltd

Defendant

[2010] NZEMPC 87

ARC 18/10

In The Employment Court Auckland

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.

Appearances:

Greg Lloyd, counsel for the plaintiff

Tim Cleary, counsel for the defendant

JUDGMENT OF JUDGE B S TRAVIS

1 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).

2 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.

3 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.

4 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.

5 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.

6 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.

7 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.

8 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.

9 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 of problem and in the course of drafting it became aware that there was no submission of grievance letter on the file.

10 Ms McInally deposed that the usual union practice was for the organiser to send a notification of personal grievance to the employer and there was a template for doing this, before passing the file onto the legal department for assistance. She had been proceeding on the assumption that this had been done and, by the time she discovered the omission, it was beyond the 90—day period. She confirmed that prior to that time she had received messages through her secretary and Mr Townsend that Mrs Melville was concerned about the time it was taking to advance her grievance. She deposes that she did not appreciate that Mrs Melville was endeavouring to alert the union to the 90—day issue, because her assumption was that this had already been attended to.

11 In cross—examination by Mr Cleary, Mrs Melville 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.

12 Ms McInally was also cross—examined and confirmed that she was a practising barrister and solicitor and, as an employee of the union, she represented the members’ interests. She confirmed that at no stage had Mrs Melville instructed her to raise a personal grievance with the defendant and that she was focussed on preparing the statement of problem.

Was the grievance raised in time?

13 The first issue is whether the actions of Mrs Melville and Mr Townsend on 24 March 2009, constituted the raising of an unjustified dismissal personal grievance for the purpose of s 114 which provides:

• (a) Raising personal grievance

  • (1) Every employee who wishes to raise a personal grievance must, subject to subsections (3)...