Monday November 4, 2013
Implied consent to an employee raising a personal grievance out of time
The Employment Court has recently addressed the issue of an employer impliedly consenting to an employee raising a personal grievance out of time. Section 114(1) of the Employment Relations Act 2000 ("the Act") states that:
"every employee who wishes to raise a personal grievance must … 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." See note 1
In Vulcan Steel Limited v Wonnocott  NZEmpC 15, Mr Wonnocott received a written warning which he alleged gave rise to a claim for unjustifiable disadvantage. In a disciplinary meeting on 20 December 2011, Mr Wonnocott was told he would be issued with a written warning. On 21 December 2011, the written warning was sent to Mr Wonnocott's legal counsel. The Employment Court found the 90-day clock for raising a personal grievance started at that point.
On 21 March 2012, Mr Wonnocott raised an unjustified disadvantage grievance in respect of the written warning. The grievance was raised 92 days after the clock had started running. Further correspondence followed between both parties but at no point did Vulcan Steel Limited ("Vulcan") raise any issue that the grievance was raised outside the 90-day statutory time limit.
On 27 April 2012, a meeting took place between Mr Wonnocott, his legal counsel and Vulcan. Mr Wonnocott's counsel referred to the grievance during the meeting, and Vulcan still did not take issue with the grievance being raised out of time.
On 3 May 2012, Vulcan wrote to Mr Wonnocott, stating amongst other things, "you have had two previous warnings and although we acknowledge that you have raised an unjustified disadvantage in relation to one of them…".
On 30 May 2012, Vulcan claimed that Mr Wonnocott did not validly raise a personal grievance in relation to the written warning due to lack of specificity. There was still no criticism that the grievance had been raised out of time.
In July 2012, Mr Wonnocott filed a statement of problem in the Employment Relations Authority. In its statement in reply, Vulcan raised for the first time that the alleged disadvantage grievance was raised out of time.
The Employment Court found that the grievance was raised outside the 90-day statutory time limit. However, the Court also found that Vulcan had consented to the raising of the grievance out of time. Consent under s 114 of the Act can be either expressed or implied. There was no suggestion Vulcan had expressly consented. The test for implied consent is a matter of fact and degree. The Employment Court found that due to the lack of protest, the delay being two days at most and Vulcan's refusal to participate in the grievance resolution process for reasons not associated with the time limitation issue, Vulcan's actions evidenced implicit consent to the late raising of the grievance.
Vulcan sought leave to appeal to the Court of Appeal against the Employment Court's decision, however, the application was dismissed.
The important point for employers is to ensure that when an employee raises a personal grievance, the first step is to check whether the grievance has been raised within the 90-day statutory time limit (s 114 of the Act). If the grievance is time barred and the employer does not want to address it, the employer should immediately respond to the employee advising that the grievance is out of time and that the employer does not consent to the grievance being raised out of time. The employer needs to advise the employee the grievance is time barred before engaging in the grievance resolution process to avoid any suggestion that consent is express or implied.
Any employer or employee forced with these issues should seek legal advice before making any decisions on what steps they should take.
Solicitor, Holland Beckett
The information contained in this article is general information only, and does not constitute specific legal or other professional advice and should not be relied on as such. Readers should obtain specific advice before making any decisions or taking any action based upon information contained in this document.
Disclosure: Holland Beckett acted for Mr Wonnocott in this matter.
Note 1: Note that where an employer does not consent to the personal grievance being raised after the expiration of the 90-day period, the employee may apply to the Employment Relations Authority for leave to raise the grievance out of time. The Authority may grant leave if satisfied the delay in raising the personal grievance was occasioned by exceptional circumstances and it would be just to do so.