Premier Events Group Ltd v Malcolm James Beattie

• Jurisdiction: New Zealand
• Judge: Gl Colgan
• Judgment Date: 14 May 2012
• Court: Employment Court
• Docket Number: ARC 22/11
• Date: 14 May 2012

In The Matter Of Proceedings Removed From The Employment Relations Authority

BETWEEN

Premier Events Group Limited

First Plaintiff

and

Ba Partners Limited (In Liquidation And Receivership)

Second Plaintiff

and

Malcolm James Beattie

First Defendant

and

Anthony Joseph Regan

Second Defendant

and

Patricia Panapa

Third Defendan

and

BETWEEN

Malcolm James Beattie

First Plaintiff

and

Anthony Joseph Regan

Second Plaintiff

and

Patricia Panapa

Third Plaintiff

and

Premier Events Group Limited

First Defendant

and

Ba Partners Limited (In Liquidation And Receivership)

Second Defendant

[2012] NZEmpC 79

ARC 22/11

IN THE EMPLOYMENT COURT AUCKLAND

Application to strike-out affirmative defence — defence purported to be a personal grievance for which compensation under s123(1)(c)(i) Employment Relations Act 2000 (“ERA”) (remedies) was claimed) — challenge to admissibility of intended evidence to be called by individual defendant parties — alleged breaches of restraints of economic activity, misuse of confidential information, breach of contract and breach of good faith in contravention of s4 ERA (parties to employment relationship to deal with each other in good faith) — advanced defences included denials of alleged wrongdoings — affirmative defences were also advanced including allegation that plaintiff breached its good faith obligations (s4 ERA) and that it was not entitled to seek equitable relief as came to Court with “unclean hands” — plaintiffs sought to have evidence in support of these defences ruled inadmissible — personal grievance raised by lodging statement of problem in Employment Relations Authority (“Authority”) — whether lodging and service on the employer of a statement of problem in the Authority raised a personal grievance in accordance with the requirements of s114 ERA (raising a personal grievance) — what conduct by employer might be encompassed within unjustified disadvantage grievance — whether evidence was irrelevant and so impermissible propensity evidence.

Counsel:

Aaron Lloyd and Vonda Hodgson counsel for Premier Events Group Limited

David Neutze and Natalie Lord counsel for BA Partners Limited (in liquidation and receivership)

John Eichelbaum, counsel for Malcolm James Beattie, Anthony

Joseph Regan and Patricia Panapa

REASONS FOR ORAL INTERLOCUTORY JUDGMENT NO 3 OF CHIEF JUDGE Gl Colgan

1 These are the reasons for the Court's Interlocutory Judgment No 3 1 delivered orally and urgently on 1 May 2012. I will not repeat what is said in that judgment so that this must be read in conjunction with it. Not all of the issues determined by that oral interlocutory judgment require elaborate reasoning including, in particular, the orders and directions refused and given at [10] and following of that judgment.

Strike-out of affirmative defence/set off (personal grievance)

2 The first issue for determination at the start of the trial was whether one of Mr Regan's defences to BA Partners Limited's claim against him should be struck out. That positive defence purports to be a personal grievance for which compensation under's 123(1)(c)(i) of the Employment Relations Act 2000 (the Act) is claimed. The particular nature of the personal grievance is that BA Partners Limited (BAPL) disadvantaged unjustifiably Mr Regan in the course of his employment.

3 BAPL said that Mr Regan is not entitled in law to bring a claim for personal grievance where s 114 of the Act has not been complied with. This requires a grievant to raise a grievance with his or her employer within the period of 90 days following the grievance arising or coming to the grievant's notice, whichever is the later. BAPL says that, before pleading a personal grievance in these proceedings, Mr Regan's claim was never raised with it so that, absent an extension of time to raise the grievance (which is not being sought from the Court), the defence should not be permitted and should be struck out.

4 Section 114 of the Act provides materially:

Raising personal grievance

• (1) Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being raised after the expiration of that period.

• (2) For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has 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.

5 It was common ground that Mr Regan did not raise his personal grievance himself by notifying his employer. Nor did any agent of Mr Regan raise the grievance. Rather, Mr Regan lodged a statement of problem in the Employment Relations Authority which outlined his grievance. There was no argument that this document did not raise his grievance with sufficient specificity so that an employer could address the grievance. 2 The date of its receipt by the employer, so far as that can best be estimated, was 25 June 2010 when the Authority served the statement of problem on BAPL. The 90 day period referred to in s 114 can be calculated by counting back from that date. That covers some of the period of Mr Regan's employment with BAPL.

6 The first issue therefore was whether the lodging and service on the employer of a statement of problem in the Authority raised Mr Regan's personal grievance in

accordance with the requirements of s 114. Counsel were unable to cite any instance where the Court has squarely addressed this question. There is, however, well-developed case law on the interpretation of s 114 and its predecessor section in the Employment Contracts Act 1991, s 33. It is clear that the Court's approach has been to treat s 114 and its predecessor broadly in that there is a relatively low threshold for notification of the personal grievance. 3 In Board of Trustees of Te Kura Kaupapa Motuhake o Tawhiuau v Edmonds, after a discussion of the statutory language and the parliamentary history, the Court noted that because getting to the dispute resolution process is a key aim of the Act, “less rigidity and less formalism are guidelines in interpreting provisions in Part 9 including the requirement to raise a personal grievance.” 4

7 That general approach is reflected in two judgments which, although decided under the Employment Contracts Act 1991, are relevant here. The relevant provision in that Act, s 33(2) provided:

Every employee who wishes to submit a personal grievance to that employee's employer in accordance with the applicable personal grievance procedure shall, subject to subsections (3) and (4) of this section, submit the grievance to that employee's employer within the period of 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee, whichever is the later, unless the employer consents to the personal grievance being submitted after the expiration of that period.

8 In Wilkinson v ISL Computer Systems Ltd, 5 the plaintiff had been employed by KPMG Peat Marwick but had first been seconded, and later employed, by a related company, ISL. The employee believed she was still employed by KPMG and raised her personal grievance with that company. KPMG forwarded the grievance letter to ISL within the 90 day limitation period and ISL responded to the personal grievance. ISL argued that the plaintiff had never herself raised her grievance with her correct employer but the Court rejected that proposition finding that, as the grievance had found its way to the employer within the 90 day period and ISL had then responded to the grievance, it had been properly raised. 6

9 The second case, Forever Living Ltd v Kruesi, 7 also involved employer misidentification. Like Wilkinson, the correct employer was informed of the personal grievance within the 90 day period by a related entity with which the grievance had been mistakenly raised. The Court rejected the plaintiff's submission that s 33(2) required a direct communication by the employee to the employer and did not permit communication of the grievance through a third party. The Court held: 8

Section 33(2) requires the employee to submit the grievance to the employer, which can be done by bringing it to the employer's notice or to the notice of a representative of the employer. Alternatively, it can be brought to such notice circuitously, provided it actually reaches the employer or the employer's representative in circumstances which objectively can be viewed as having presented the submission to the employer for consideration or decision in a way that enables the employer to respond.

10 This case does not concern employer misidentification but I consider that the case law supports a finding that an employee may raise a personal grievance if a third party brings that grievance to the attention of the employer within the 90 day period. An employee who submitted an application to the Authority could be confident (because that is the normal procedure) that the Authority would serve that application to the named employer soon after its submission. While this method of raising a personal grievance runs the risk that service may occur outside the 90 day window, in this case a count back from the date of service includes some part of Mr Regan's employment.

11 Further, I consider that this approach is mandated by the terms of s 114(2) itself which define the raising of a grievance with an employer as occurring “as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware”. What is required is that...