Prasert Arkompat v Thai Chilli Company Ltd Trading as Thai Chilli

JurisdictionNew Zealand
JudgeGL Colgan
Judgment Date10 August 2011
CourtEmployment Court
Docket NumberARC 33/11
Date10 August 2011

In The Matter of an application to extend time for filing a challenge

BETWEEN
Prasert Arkompat
Applicant
and
Thai Chilli Co Ltd Trading as Thai Chilli
Respondent

[2011] NZEmpC 101

ARC 33/11

IN THE EMPLOYMENT COURT AUCKLAND

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.

Counsel:

Hon Matt Robson, counsel for applicant

Paul Gallagher, counsel for respondent

JUDGMENT OF CHIEF JUDGE GL Colgan

1

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.

2

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's

determination. 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
3

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.

4

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.

5

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.

The Authority's determination
6

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.

7

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.

8

There are, however, some aspects of the Authority's determination upon which I feel compelled to comment for the assistance of Authority Members generally. These are not matters which fall within the prohibitions set out in s 188(4) of the Act. Rather, they are considerations of natural justice in respect of which this Court has an entitlement, indeed perhaps an obligation, to raise for the fair and just disposal of proceedings under the Act.

9

As noted already, nothing was done to raise Mr Arkompat's grievance until more than 18 months after dismissal when he initiated proceedings in the Authority. It appears that Mr Arkompat, who was represented by counsel in the Authority, did not apply for leave under s 114 of the Act to raise his grievance until very belatedly. That application was only made to the Authority orally and during Mr Robson's closing submissions.

10

The Authority determined:

[36] … That is far too late, especially given that the 90 day issue was first raised by Thai Chilli Co in its statement in reply lodged in August 2009. The employer is not able to have a...

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1 cases
  • Y v Kevin Hyde Engineering Ltd
    • New Zealand
    • Employment Court
    • 11 Julio 2013
    ...filing fee” applies only where leave has been granted to serve a proceeding on an overseas party and has no application here. 2 [2011] NZEmpC 101. 3 See for example Registrar of Companies v Nearzero Inc (HC, Nelson, CIV 4 See Te Runanga O Ngai Tahu Ltd v Attorney-General (1996) 9 PRNZ 321.......

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