Cases of interest: August 2023

Cronin-Lampe v Board of Trustees of Melville High School [2023] NZEmpC 144

Employment Court – Personal grievance – Leave to raise out of time

At issue in this preliminary decision was whether the employees would be given leave to raise personal grievances outside of the usual 90-day period under section 114(external link) of the Employment Relations Act 2000 (Act).

The employees were guidance counsellors at a high school for 15 years. They were a married couple. During their time as counsellors at the school, there were around 32 deaths in the school community, many by suicide. They assisted students, families and teachers with the resultant trauma. They also provided a wide range of counselling services and led project work such as restorative practices. The employees were expected to be available 24/7 to provide support to the community. Over the course of their employment, their workload increased and the level of supervision and support they received decreased. One employee described their experience as working hard against “a tide of suicide and grief” (see paragraph 278). 

Under s 114 of the Act, an employee must raise a personal grievance with their employer within 90 days, unless their employer consents to it being raised later. However, the Employment Relations Authority (Authority) or Employment Court (Court) may give an employee leave to raise their personal grievance outside of that timeframe if it considers exceptional circumstances caused the delay and if it is just to do so.

The employees raised personal grievances over 13 months after the date they claimed exceptional circumstances arose. The Court gave the employees leave to do so (see paragraph 533). The Court noted it was “most unusual to sanction such a long period of delay, but the present circumstances are highly unusual” (see paragraph 520). The Court took into account:

• Contrary to its health and safety obligations, the school failed to provide regular professional supervision, trauma debriefing, or put a health and safety plan in place for the employees (see paragraph 481).
• The significant workload and number of traumatic events, together with the lack of support, left the employees very vulnerable (see paragraph 486).
• The Court, after weighing the evidence of psychologists, found the employees suffered from post-traumatic stress disorder (PTSD). Their PTSD had arisen by at least the date the exceptional circumstances began (see paragraphs 453, 460). 
• One of the employees felt bullied by another staff member (see paragraph 497).
• The other employee had uncertainty over his role. He was working on a full-time basis but only employed on a 0.6 full time equivalent basis (see paragraph 489).
• They had trouble taking time off in lieu, despite a prior agreement (see paragraph 491).
• The employees focused on the wellbeing of the students rather than their own (see paragraph 505).
• One of the psychologists who gave evidence noted that he had never before seen a mental health service provider who was expected to be on call 24/7 to deal with crises (see paragraph 413).
• “While they soldiered on, functioning to a point, each ultimately reached the stage in late 2011 where they could no longer continue.” The employees were unable to analyse the situation or consider raising personal grievances at that time (see paragraph 520).
• The employees did not know they were afflicted by PTSD, which constituted an extraordinary circumstance (see paragraph 516).

The Court ordered the parties to attend mediation (see paragraph 535).

Cronin-Lampe v Board of Trustees of Melville High School [2023] NZEmpC 144(external link)

Taniwha v Te Rūnanga o Toa Rangatira Ltd [2023] NZEmpC 140

Employment Court – Personal grievance – Leave to raise out of time

At issue in this preliminary decision was whether the employee would be given leave to raise a personal grievance outside of the usual 90-day period under section 114(external link) of the Act.

The employee worked for an iwi authority that provided health services, among other services, to its community. The employer considered the employee’s role came within the scope of the COVID-19 Public Health Response (Vaccinations) Order 2021 (Order)(external link). The employer therefore understood the person employed in the role would need to be vaccinated. The employee decided not to be vaccinated.

The parties had a telephone conversation on 10 November 2021. The employee then sent the employer an email the same day. The employee later claimed he raised personal grievances in those communications, although he didn’t use that term. The employer wrote to the employee on 16 November, terminating the employee’s employment on 13 December 2021. The Court noted the 90 days in which the employee had to raise a grievance therefore expired on 13 March 2022. The employee wrote to the employer the next day, on 14 March 2022, to indicate he would be “lodging a personal grievance for unfair dismissal” (see paragraph 16). The employee lodged a statement of problem in the Authority on 21 March 2022. 

The employer claimed the employee had not raised a personal grievance within 90 days, and it did not consent to it being raised out of time. The employee later clarified to the Court that he did not intend to raise an unjustified dismissal grievance, but instead an unjustified disadvantage grievance.

The Court found the employee raised an unjustified disadvantage personal grievance under
section 103(1)(b)(external link) during the telephone conversation and subsequent email on 10 November 2021. The Court gave the following reasons:

• An employee is not required to raise a personal grievance in a particular manner. However, the employer “must know what it is responding to, and must be given sufficient information for that purpose on the merits with a view to resolving the grievance” (see paragraph 41).
• The employee informed the employer he had concerns about the vaccine and referred to obtaining an exemption. The employer was then obliged to consider whether the employee would be able to obtain a vaccine exemption under the Order (see paragraph 46).
• The employee did not accept it was legal for the employer to dismiss him. The employer was put on notice of this during their communications on 10 November (see paragraph 49).
• The employer declined to resolve a previous disciplinary matter, believing the termination had overridden it. The employee raised strong objections to this stance (see paragraph 48).
• In the telephone call on 10 November the employee alleged he was being bullied and treated unfairly by the employer (see paragraph 50).
• The Court found the employee outlined his concerns and wanted the employer to address them. The Court considered this crossed the threshold of raising a grievance (see paragraph 52).

The Court ordered the parties to attend mediation (see paragraph 59).

Taniwha v Te Rūnanga o Toa Rangatira Ltd [2023] NZEmpC 140(external link)

Caisteal An Ime Ltd v Labour Inspector of the Ministry of Business, Innovation and Employment [2023] NZEmpC 126

Employment Court – Enforceable undertaking – Evidence of compliance

The Labour Inspectorate received complaints about an employer. Those complaints led the Labour Inspectorate to make an unannounced visit to the workplace. A Labour Inspector asked the employer to provide its wage and time records and employment agreements so that she could investigate whether the employer was complying with relevant employment legislation. The investigation found eight breaches of the Act, the Holidays Act 2003(external link) and the Wages Protection Act 1983(external link). The parties signed an enforceable undertaking under section 223B(external link) of the Act. In the undertaking, the parties agreed the employer would audit all of its employee records to ensure its employees had received their entitlements by a certain date. The enforceable undertaking stated the employer would provide certain evidence of the audit to the Labour Inspector.

The Labour Inspector was not satisfied that the employer had complied with the enforceable undertaking. She gave the employer notice that it was required to provide her with records under section 229(external link) of the Act. The employer did not provide the records. The Labour Inspector sought a compliance order and a penalty in the Authority. The Authority issued the compliance order and a penalty of $7,500 (see paragraphs 11–12).

The employer challenged the Authority’s determination in the Court. The employer sought to have the Authority’s determination set aside. It also sought monetary awards (see paragraph 13). The Court found there was no basis for the employer to refuse to provide the records required by the Labour Inspector (see paragraph 58). It did not accept the employer’s submissions that the Labour Inspector had behaved inappropriately or made malicious allegations (see paragraphs 32–33).

The Court found the penalty issued by the Authority was “appropriate” (see paragraph 60) and the compliance order “inevitable” (see paragraph 40).

Caisteal An Ime Ltd v Labour Inspector of the Ministry of Business, Innovation and Employment [2023] NZEmpC 126(external link)

Lenoel v Waikato Windoware Ltd [2023] NZERA 481

Employment Relations Authority – Personal grievance – Unjustified dismissal – 90-day trial period – Validity

At issue was whether the employer was entitled to rely upon the 90-day trial period in the employment agreement when it dismissed an employee.

The employer was a small company that made curtains and outdoor shades. The employee expressed interest in a curtain track assembler role. After an interview, the director of the employer telephoned the employee to offer her a position. The director emailed an employment agreement, which included a 90-day trial provision, to the employee. However, the employee did not read the agreement. The director did not verbally advise the employee of the 90-day trial. The agreement was not accompanied by a letter or email telling her about her right to seek independent legal advice. The employee signed the agreement on her first morning.

The director was not happy with the employee’s work. He said she made a lot of mistakes, took extended breaks, was regularly late for work, claimed time she hadn’t worked and made excuses. There was a dispute between the parties over whether the employee had accessed the internet on the office computer and then deleted its history. The director decided the employee had breached his trust and the employment relationship had broken down. He dismissed the employee, relying on the 90-day trial period in the agreement and section 67B(external link) of the Act.

The Authority noted that as “trial periods restrict what would otherwise be an employee’s right to challenge their dismissal as unjustifiable, the requirements must be strictly met” (see paragraph 16). The Authority found that the employer had not given the employee specific advice that she was entitled to seek legal advice. And that even if she had been, it was questionable that she would have had sufficient time to do so (see paragraphs 18–19). The Authority found the 90-day trial was invalid (see paragraph 21).

The Authority held the employee was unjustifiably dismissed because the employer did not complete a fair process before the dismissal (see paragraphs 66–67). It ordered the employer to pay the employee $10,500 compensation and $6,615 in lost wages, after reducing those figures by 30% to reflect the employee’s contribution to the situation that led to her dismissal (see paragraphs 73–74).

Lenoel v Waikato Windoware Ltd [2023] NZERA 481(external link)