Posted on: Jul 22, 2013
When an employee does not raise an alleged personal grievance within the statutory 90-day period, the employee can make an application to the Employment Relations Authority seeking leave to raise the personal grievance out of time: section 114(3), Employment Relations Act 2000. The Authority may grant leave if:
- it is satisfied that the delay was occasioned by exceptional circumstances, and
- it considers it just to do so.
Without limiting the type of event that can constitute “exceptional circumstances”, the Act provides examples of what would constitute exceptional circumstances (section 115), including that the employee has made reasonable arrangements to have the grievance raised by the employee’s agent and the agent has unreasonably failed to ensure the grievance was raised within the 90-day time limit (section 115(b)).
A recent decision of the Employment Court (Davies v Dove Hawkes Bay Inc [2013] NZEmpC 83) has made it clear that previous case law stating that to fulfill the requirements of section 115(b) the employee has to specifically request the agent to raise the grievance is no longer good law. The Employment Court said if a dismissed employee engages a qualified, knowledgeable and experienced agent to advise on and protect the employee’s interests following a dismissal with which the former employee is dissatisfied, it is reasonable for the employee to expect the agent to do so. It said an employee’s steps to have an agent raise a grievance must be reasonable but an employee is not required to chase up the agent to ensure the agent has raised the grievance in time.
Disclaimer
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