Pollard Contracting Ltd v Shaune Donald

JurisdictionNew Zealand
JudgeB A Corkill
Judgment Date05 August 2014
CourtEmployment Court
Docket NumberCRC 6/14
Date05 August 2014

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

BETWEEN
Pollard Contracting Limited
Plaintiff
and
Shaune Donald
Defendant

[2014] NZEmpC 137

CRC 6/14

IN THE EMPLOYMENT COURT CHRISTCHURCH

Challenge to the granting of leave by the Employment Relations Authority (the Authority) to the defendant to proceed out of time – defendant lodged a statement of problem with the Authority alleging he had been unjustifiably dismissed – defendant relied on the service of that statement on plaintiff's lawyer to raise his personal grievance but due to an error by the courier, who placed it in the wrong post box, it was not actually received by the plaintiff until after the expiry of the statutory 90-day period under s114(1) Employment Relations Act 2000 (Raising personal grievance) — whether the 90 day period ran from the date of the receipt of the emails from plaintiff's lawyer or the date of receipt of the hardcopy dismissal letter — whether a personal grievance could be raised via the lodging of a statement of problem in the Authority and if so, whether it was only permissible to do so where it had occurred within 90 days — whether a more strict approach was apt where an employee had had ample time to engage counsel on this task or to act on advice.

JUDGMENT OF JUDGE B A Corkill

Introduction
1

The defendant, Mr Shaune Donald, was employed by the plaintiff, Pollard Contracting Limited (PCL), from May 2011 until his summary dismissal on 18 June 2013. He lodged a statement of problem with the Employment Relations Authority (the Authority) alleging he had been unjustifiably dismissed. He relied on the service of that statement to raise his personal grievance but it was not actually received by the plaintiff until after the expiry of the statutory 90-day period. The Authority granted leave for the defendant to proceed out of time. 1 The plaintiff challenges that determination and seeks a hearing de novo. The parties agreed that the Court should consider the challenge on the papers.

2

In summary the Authority determined:

  • a) The Authority was bound to accept the conclusion reached in Premier Events Group Ltd v Beattie (No. 3). 2 In that case Chief Judge Colgan held that an employee could raise a personal grievance by lodging a statement of problem in the Authority which outlined the grievance. So long as the statement of problem complied with the requirements for lodging a personal grievance this could be an appropriate means of doing so.

  • b) Having regard to the dicta in Creedy v Commissioner of Police, 3 the Authority was satisfied that Mr Donald had made statements in the statement of problem which clearly expressed the view that the dismissal was unjustified and that there were failings in the process adopted by the plaintiff. Although the claim was raised in scant terms, there was sufficient specificity for PCL to understand what Mr Donald was complaining about. 4 Claims were also raised under the Wages Protection Act 1983 and the Holidays Act 2003; these were not subject to the 90-day time limit so the Authority could accept those claims. 5 However, it was not accepted that Mr Donald had raised a grievance of unjustified disadvantage arising from an alleged suspension, as there were insufficient particulars to raise such an allegation. 6

  • c) The grievance was clearly not raised with the employer within the statutory 90-day period. However, the Authority was satisfied that there were exceptional circumstances, namely an error committed by a third party (Courier Post) which meant that it would be just to grant Mr Donald leave to raise his personal grievance outside of the 90-day time period. 7

3

The parties have agreed a summary of facts which states: 8

Counsel for the Plaintiff and for the Defendant have agreed to the following statement of facts
  • 1. The Plaintiff company employed the Defendant on 23 May 2011.

  • 2. The Plaintiff provided the Defendant with an individual employment agreement which was taken from the (then) Department of Labour website ‘employment agreement builder.’

  • 3. The individual employment agreement contained a plain language explanation of how employment relationship problems may be resolved, consistent with section 65 (2) (vi) of the Employment Relations Act 2000. This clause was taken from the Department of Labour website, and is the clause referred to on that website as ‘Short Form’.

  • 4. The Plaintiff sent the Defendant a new individual employment agreement in November 2011. This agreement also contained a plain language explanation of how employment relationship problems may be resolved.

  • 5 The Plaintiff called the Defendant to a disciplinary meeting in a letter dated 25 May 2113.

  • 6. The Defendant instructed a solicitor, Simon Graham, of Young Hunter Barristers and Solicitors, who emailed the Plaintiff on 28 May 2013.

  • 7. Mr Graham continued to act for the Defendant throughout the disciplinary process.

  • 8. The Plaintiff suspended the Defendant. The Defendant consented to the suspension on pay in an email from Mr Graham to Counsel for the Plaintiff on 7 June 2013.

  • 9. The Plaintiff held two disciplinary meetings with the Defendant on 4 June 2013 and on 12 June 2013.

  • 10. Mr Graham sent an email to Counsel for the Plaintiff on Monday 17 June 2013 enquiring as to when the Defendant could expect to receive notification of the outcome of the two disciplinary meetings. The Defendant had expected to hear the outcome by Friday 14 June 2013.

  • 11. Counsel for the Plaintiff sent an email to Mr Graham on 18 June 2013 at 3:21pm. This email attached a letter which notified the Defendant of his summary dismissal “the dismissal letter”).

  • 12. At 3:53pm on 18 June 2013, counsel for the Plaintiff sent Mr Graham a further email (“the second email”) which sought to make arrangements for the return of the Plaintiff's property that was believed to be held by the Defendant. This email made reference to the earlier email which contained the dismissal letter.

  • 13. The dismissal letter was also placed in the post. The letter was received by Young Hunter on 19 June 2013.

  • 14. On 24 June 2013 the Defendant attended counsel for the Plaintiff's offices and returned property belonging to the Plaintiff. Shortly thereafter an email was sent to Mr Graham regarding this.

  • 15. On 2 July 2013, Mr Graham emailed and called counsel for the Plaintiff on the telephone to discuss which items of property were still to be returned by both parties, and to discuss the payment of commission to the Defendant on sales generated in the early days of the Defendant's employment.

  • 16. On 4 July 2013 Mr Graham emailed counsel for the Plaintiff with a query regarding the Defendant's final pay, and also asking for an update on the issues raised by him on 2 July 2013,

  • 17. Counsel for the Plaintiff emailed Mr Graham on 9 July 2013 with a response to each of the issues raised by Mr Graham on 2 July 2013 and 4 July 2013. This was counsel for the Plaintiff's last contact with Mr Graham.

  • 18. Soon after Mr Graham's last contact with counsel for the Plaintiff, the Plaintiff received a letter from Johan Kirkzwager, Labour Inspector with the Ministry of Business Innovation and Employment. This letter was dated 9 July 2013 and was sent via post directly to the Plaintiff.

  • 19. On Wednesday 11 September 2013, the Employment Relations Authority (“the Authority”) accepted for filing an application filed by the Defendant.

  • 20. At 4:27pm on 11 September 2013, Carol Lin, Support Officer with the Authority, emailed counsel for the Plaintiff regarding whether counsel was still authorised to accept service of an “ application” on behalf of the Plaintiff.

  • 21. Counsel for the Plaintiff responded to Ms Lin in an email sent at 10:52am on Thursday 12 September 2013. This email confirmed that counsel was still authorised to accept service on behalf of the Plaintiff.

  • 22. Ms Lin sent the Defendant's application in a courier bag. This was addressed to the PO Box of SB Law. The courier bag was not sent on a ‘signature required’ ticket. This is the Authority's standard practice.

  • 23. Courier Post records indicate that the application was picked up from the Authority at 3:14pm on Thursday 12 September 2013. Their records also indicate that the application was delivered at 12:00 noon on Friday 13 September 2013.

  • 24. The Legal Receptionist at SB Law, Margaret Paterson, retrieved the application from the SB Law PO Box on the morning of Thursday 19 September 2013.

  • 25. Mrs Paterson collects SB Law's mail from the firm's PO Box before the start of every working day. The relevant PO Box is located at the Christchurch Box Lobby, 67 Cashel Street, Christchurch Central.

  • 26. At 12:01pm on 19 September 2013, counsel for the Plaintiff sent a copy of the Defendant's application to the Plaintiff in an email.

  • 27. On 3 October 2013 the Plaintiff filed a statement in reply in the Authority. This set out the Plaintiff's view that the Defendant had raised a personal grievance out of time, and that the Plaintiff did not consent to the personal grievance being raised out of time. It also raised the Plaintiff's view that even if it was raised in time, the statement of problem failed to sufficiently specify the particulars of the alleged personal grievance so that the Plaintiff could address it.

  • 28. On 6 November 2013, the Plaintiff filed an affidavit of Ms Paterson in the Authority. This affidavit pertained to the matters set out in paragraphs 24 -26 of this agreed statement of facts.

  • 29. On 14 November 2013 Ms Sue Freeman from Courier Post emailed Ms Lin at the Authority regarding the delivery of the Defendant's application. Ms Freeman stated that the delay in receiving the courier package “Could” have been due to it being put in the incorrect mail box, but that this was only an assumption.

Submissions
4

For the plaintiff it is submitted in summary:

  • a)...

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