Prasert Arkompat v Thai Chilli Company Ltd Trading as Thai Chilli
 NZEmpC 101
IN THE EMPLOYMENT COURT AUCKLAND
In The Matter of an application to extend time for filing a challenge
Hon Matt Robson, counsel for applicant
Paul Gallagher, counsel for respondent
Application to extend time for filing a challenge claim in the Employment Relations Authority (“ERA”) for a personal grievance (unjustified dismissal) grievance was raised out of time ERA determined that there was no good reason for the lateness of the application and it would have been unjust and unreasonable to expect the employer to reply to such a late application this application was filed out of time as well whether it would be just in all the circumstances to extend the time for filing.
At issue was whether it would be just in all the circumstances to extend the time for filing.
Held: It was not appropriate to grant A leave to challenge the ERA's determination. A's reasons for not bringing the application within time did not justify leave being granted. A short delay caused by counsel miscalculating the period in which to challenge a determination might be acceptable but not a period of six weeks on top of the allowed four weeks. A's financial circumstances did not account adequately for the delay. Thai Chilli had some justification in claiming ongoing prejudice or hardship as a result of A's repeated failures to adhere to time limits. There was also no identification of the merits of A's case.
The decision not to grant A leave to challenge the ERA's determination was not necessarily to be an endorsement of the ERA's reasoning and conclusion. The ERA should be slow to reject applications made to it, even belatedly, orally, and towards the end of its investigative meetings. It was problematic in this case that the ERA after determining not to entertainA's belated application for leave, proceeded to express what its determination would have been if it had allowed the application. This was done without having heard all the evidence and submissions on that conclusion. The ERA did the same thingin respect of any question of justification for dismissal concluding that A's grievance was not properly before the ERA but A would have been unlikely to succeeded on the merits of his claim anyway.
JUDGMENT OF CHIEF JUDGE GL Colgan
The question for decision in this judgment is whether Prasert Arkompat should be allowed to challenge the determination of the Employment Relations Authority after the time for doing so as of right (28 daysfrom the Authority's determination) has expired. The Authority's determination 1 was issued on 24 February 2011. The 28-day period expired after Thursday 24 March 2011. This application, together with supporting evidence and a draft statement of claim, were filed on 6 May 2011 and served on the respondent soon thereafter. The delay in applying was almost six weeks.
The applicant's reasons for lateness include that he was unable, within the 28-day period, to pay further legal costs enabling him to challenge the Authority'sdetermination. The applicant also says he was advised wrongly by his counsel that the 28-day period expired on 31 March 2011, about a week after it did in fact.
Even accepting that the applicant's lawyer may have erroneously advised him that he had one further week within which to challenge the Authority's determination, that does not explain adequately, or really at all, why it took a further five weeks after that to lodge a challenge. Indeed, it does indicate that both the applicantand his lawyer were then aware of the expiry of an appeal period and could be expected to have done something about it.
The applicant's case then falls back on his other ground, that of temporary impecunosity. He says he had other debts which, presumably, he felt obliged to either discharge or at least address before filing a challenge. The applicant, as someone in New Zealand on a temporary immigration permit, is not entitled to legal aid. There is, however, little if any detailed explanation of the sort that would be expected in an application such as this aboutthe efforts made to obtain the court filing fee ($204.44) or why a waiver of this, even in a temporary way, could not havebeen sought by his counsel. Although rarely if ever sought, the legislation does not necessarily prohibit an application to the Court to waive or delay payment of a filing fee, or to file a proceeding and apply contemporaneously or subsequentlyto formalise its filing under s 219 of the Employment Relations Act 2000. Meritorious challenges should not fail simply for want temporarily of a filing fee. It would be a shameful day when the door of the Court were to remain closed to a litigant because of temporary impecuniosity and although Parliament and the Executive (by regulations) have not (yet) provided expressly for a fee waiver/postponement regime, it should not be beyond the wit of the Judges to so dispense justice in what will be rare but deserving cases.
Mr Arkompat's claims in the Employment Relations Authority against Thai Chilli were for a personal grievance (unjustified dismissal) and for arrears of wages and holiday pay. He first filed his statement of problem in the Authority (without having raised his grievance with his employer) at the beginning of August 2009, more than 18 months after his employment had ended. Although he was within time to claim wage arrears and was not required to notify his former employer of this before doing so, his personal grievance should have been raised with the company within 90 days of his dismissal or of his becoming aware of this event. So he was then about 15 months out of time in raising his grievance.
This dismissed comprehensively not only the claims brought before it by Mr Arkompat but also others that were not permitted by the Authority to be put before it.
First, the Authority had to determine whether Mr Arkompat had raised his personal grievance of unjustified dismissal with his employer within 90 days after its occurrence or his discovery of that if it was a longer period. Although Mr Arkompat asserted that he had raised his grievance when, as he claimed, his employer sought apayment of $30,000 from him to both support his application for renewal of his work visa and for permanent residence, theAuthority concluded that this could not have been the raising of a grievance as required by the legislation. That appearstohave been a sound finding by the Authority and indeed Mr Arkompat has not challenged it.
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