STUART CLIVE AUSTIN v SILVER FERN FARMS Ltd NZEmpC AUCKLAND

• Jurisdiction: New Zealand
• Judge: G L Colgan
• Judgment Date: 26 February 2014
• Court: Employment Court
• Docket Number: ARC 88/11
• Date: 26 February 2014

BETWEEN

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

Stuart Clive Austin

Plaintiff

and

Silver Fern Farms Limited

Defendant

[2014] NZEmpC 30

ARC 88/11

IN THE EMPLOYMENT COURT AUCKLAND

Challenge to a determination of the Employment Relations Authority which found the plaintiff had not raised a personal grievance within the required 90day period — plaintiff had injured himself in a non-work related accident and then two weeks later injured himself in a work-related accident — defendant was an accredited employer for accident compensation purposes and assumed the rights and obligations of the Accident Compensation Corporation “ACC” in respect of its employees' work-associated accidents — defendant originally covered the plaintiff's injury but ceased payments after persuading employee to relinquish his coverage and to apply to ACC for coverage for the earlier accident- ACC originally covered the defendant but then terminated payments on the basis his injures were work-related — Union advised plaintiff he had no claim and employee did not raise claim within 90 day period — whether s114(4)(a) Employment Relations Act 2000 “ERA” (raising personal grievance- delay due to exceptional circumstances) and s115 ERA (exceptional circumstances) applied — whether Employment Court had jurisdiction.

Counsel

Alex Hope, counsel for plaintiff

Tim Cleary, counsel for defendant

JUDGMENT OF CHIEF JUDGE G L Colgan

1 The issue for decision on this challenge to a determination 1 of the Employment Relations Authority is whether Stuart Austin should have leave to raise unjustified disadvantage and unjustified dismissal grievances after the expiry of the 90 day period for doing so. The case turns particularly on the likely merits of the plaintiff's grievance involving the employer's conclusion that he could not return to full duties after suffering personal injury by accident.

2 The plaintiff was injured undertaking work for Silver Fern Farms Limited (SFFL) which is what is known as an accredited employer for accident compensation purposes. This means essentially that the employer assumes what would otherwise be the rights and obligations of the Accident Compensation Corporation (ACC) in respect of its employees' work-associated accidents. In the course of treating Mr Austin for the effects of his injury, bruising was seen on his body that suggested an

earlier accident. Some nine days earlier, there had indeed been a non-work incident which caused the bruising but the plaintiff had not then visited his doctor about this, had not then made any claim for accident compensation benefits, and had worked normally for more than a week until the workplace accident occurred

3 Mr Austin was initially off work completely after his workplace accident and was then certified to return to light duties. The employer initially accepted the obligations of compensating and rehabilitating him and did so although his condition deteriorated. SFFL then persuaded the plaintiff to relinquish his coverage with it for earnings related compensation and other benefits, and to claim these from ACC on the basis that his incapacity was caused by the earlier non-work “accident”. ACC accepted cover initially but then acted upon the report of an expert medical assessor whose opinion was that the plaintiff's incapacity had been caused mainly, if not entirely, by the work related accident. ACC ceased earnings related compensation payments to Mr Austin. The employer continued to assert that the plaintiff was no longer its responsibility and eventually suspended and/or dismissed him because of his incapacity to carry out even the light duties that he had formerly been able to perform.

4 Mr Austin did not raise a personal grievance with the employer within the period of 90 days beginning with the date of his dismissal. Several months later, however, when documents on his personnel file were delivered to his lawyer, a handwritten file note about the way in which the plaintiff's accident compensation claim to the company was dealt with, emerged for the first time.

5 Although personal grievances were then raised with the employer, the Authority found against the plaintiff on three preliminary issues. The first was that the personal grievances had not been raised with the employer within the period of 90 days starting on the date on which they occurred. Second, the Authority concluded that the grievances were not raised within the period of 90 days starting with the date on which the plaintiff became aware that he could raise a personal grievance. Third, the Authority dismissed the plaintiff's application for leave to bring his grievance late because of an absence of exceptional circumstances and that it would not be just to do so.

6 Those are the circumstances which bring the parties before the Court.

7 The case raises complex and difficult issues about employment relationships between employers and employees where the employer also assumes the role of accident compensation insurer to, and rehabilitator of, the employee. Apart from this being a peripheral issue in one other case decided by this Court (coincidentally involving the same employer), 2 these issues for decision are unique and involve the application of a complex inter-relationship of different statutes with complex particular facts.

8 Mr Austin challenges both the Authority's determinations that he did not raise his personal grievance in time and declining his application for leave to bring his personal grievance to the Authority even if he did not raise it within the 90 day period. As to the former, the plaintiff says that he raised his grievances within 90 days of becoming aware that he could do so. As to the latter, Mr Austin says that there were exceptional circumstances including a breach of good faith duties by SFFL and his lack of understanding of the accident compensation scheme in place for SFFL employees. He says that it is just and fair to allow him to bring his grievance late.

9 The remedies that Mr Austin seeks include a finding by the Court that he is entitled to pursue his personal grievanceagainst SFFL for unjustified disadvantage and unjustified dismissal, and costs.

Non-publication order

10 At the request of the defendant, without opposition from the plaintiff and because of its commercial sensitivity, I make an order prohibiting publication of the contents of the agreement between SFFL and ACC by which the defendant is an accredited provider. Further, no person is to search the court file for a copy of this document without the leave of a Judge. Because this judgment does not contain that information, there is no restriction on the publication of the judgment.

Relevant facts

11 Mr Austin was a meat worker at SFFL's Te Aroha meat processing plant. On 4 January 2009 he was go-karting with his grandson but stopped when he felt the ground was too rough to continue. It appears likely that his backside became bruised subsequently. He received no medical treatment for this incident although it appears that Mr Austin made an accident compensation claim (to ACC) on 23 January 2009, some 10 days after his subsequent work injury. Mr Austin continued to work normally at the SFFL plant but injured his back at work on 13 January 2009. He was certified by his general medical practitioner on 19 January 2009 to be fit for “;light duties”; on a limited basis.

12 On 5 February 2009 SFFL accepted Mr Austin's claim for accident compensation coverage for a work related injury as defined by the then applicable s 28 of the Injury Prevention, Rehabilitation, and Compensation Act 2001. He began on light duties but the company then advised him on 21 April 2009 that it considered that his incapacity arose from his 4 January 2009 non-work related injury and not his 13 January 2009 work related injury. SFFL came to know about Mr Austin's backside bruising because this was seen and reported by the company first-aider who assisted him following his 13 January 2009 accident.

13 Mr Austin worked intermittently on light duties until, by early May 2009, his condition precluded him from working at all.

14 At about the same time, in early May 2009, Mr Austin and a union representative met with SFFL's Te Aroha plant manager, Felix O'Carroll, to discuss his situation. Mr O'Carroll's advice to Mr Austin was that due to SFFL's conclusion that his incapacity was caused by what SFFL considered was the 4 January 2009 accident rather than the 13 January 2009 accident, he should apply to ACC for earnings related compensation. Mr Austin was also advised that he would be “;better off”; being on ACC compensation rather than on the company's compensation scheme. Mr Austin's uncontradicted evidence was that he was told that if he did not discontinue his claim against the company in respect of his work related injury on 13 January 2009, he would not be able to retain his employment.

15 Consequently Mr Austin visited his doctor on 6 May 2009 as a result of which he was “transferred” to ACCearnings related compensation payments which were necessarily tied to the 4 January 2009 non-work related incident.

16 On 8 May 2009 at a further meeting with Mr O'Carroll, Mr Austin was prevailed upon to sign a letter addressed to SFFL on its letterhead and pre-prepared by the company, agreeing to discontinue his claim on its scheme and to make a claim on ACC's scheme in respect of the 4 January 2009 event.

17 Unsurprisingly, ACC then investigated the circumstances of Mr Austin's incapacity. On 5 June 2009 Mr Austin metan ACC case manager and was subsequently examined by Dr Christopher Milne who prepared a comprehensive report for ACC. This included Dr Milne's assessment that the 13 January 2009 work related accident had brought about Mr Austin's incapacity. The doctor conceded that “there may have been some minor triggering” of Mr...