A recent case brings home the importance of raising a personal grievance within the 90-day time limit and that "without prejudice" should only be used in letters where it is necessary.
Ms B was employed by Idea Services ("ISL") as a community service worker. Issues arose in regards to Ms B's compliance with policy and service standards of ISL.
On September 15, 2010, Ms B's representative wrote a letter to ISL stating that Ms B would be pursuing a personal grievance. At a meeting on September 17 Ms B was dismissed with two weeks' pay in lieu of notice. Ms B's union representative advised that Ms B would be "taking action" under the "CEA Personal Grievance and the Health and Safety employment Act".
On October 10 Ms B's representative wrote a letter that Ms B was taking the opportunity to "invoke, facilitate and submit a personal grievance", and referred to various sections of the Employment Relations Act and Health and Safety in Employment Act that outlined remedies. A document was also referred to that was meant to detail the remedies sought by Ms B, but this wasn't provided with the letter.
Finally, a "without prejudice" letter was sent by Ms B's representative to ISL on November 16, 2010, requesting an informal meeting to discuss how issues were to be resolved. In that letter was the following paragraph: "Briefly the issues are around the manner in which your Community Service Manager has been treating both our clients in a way which can only best be described as bullying and harassment."
The paragraph in the "without prejudice" letter was the only reference to what the grievance was about. The employer argued before the authority that the employee had not raised a grievance within 90 days (required by the Act ) and therefore Ms B could not pursue the grievance.
The Employment Relations Authority held that the statement made on September 17 that Ms B would be "taking action" and neither of the letters to the employer were sufficient individually to raise a personal grievance. However, viewed in totality, the statement at the meeting, and the two letters, were adequate specification of the personal grievance raised by Ms B within the 90 days.
Crucially the authority took into account the "without prejudice" letter in November as part of the totality of events.
ISL appealed to the Employment Court, primarily on the basis that Ms B had not raised a sufficiently specific personal grievance within the 90 days and that the ERA was wrong to hold that she had. The employer also argued that the without prejudice letter should not have been considered by the authority at all. The Employment Court agreed with the employer.
All those involved in employment law should read this case . The letter of November 16, 2010, sent by Ms B's advocate to Idea Services following Ms Barker's dismissal sought a "without prejudice meeting, with a view to discussing issues and determining whether a 'way forward' that was acceptable to Ms Barker, prior to 'further action' being taken."
The entire letter was expressed to be sent on a without prejudice basis, and according to the Employment Court it was clearly intended to initiate confidential settlement discussions aimed at resolving matters between the parties.
The Employment Court concluded that the authority erred in finding that the employee could "unilaterally" waive the privilege otherwise attaching to the November 16 letter.
In other words, as the employer did not agree to allow the letter to go in front of the authority, it couldn't.
This had the effect that the paragraph that set out the grievance, "Briefly the issues are around the manner in which your Community Service Manager has been treating both our clients in a way which can only best be described as bullying and harassment", for all intents and purposes didn't exist.
The Employment Court held that a grievance that complied with the Act had not been raised.
The Employment Court went further and said even if it could have considered the November letter as evidence, there would still have been insufficient material put to the employer to raise a valid grievance.
Section 114 of the Employment Relations Act requires employees raise a personal grievance within 90 days of the date on which the action giving rise to the grievance occurred. The employee is required to take reasonable steps to make the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.
The court stated the purpose of personal grievance procedures is to identify and address employment issues in a timely and efficient manner through direct communication between the parties.
Whether or not an employee adequately informs their employer about the nature of the alleged grievance is a matter of fact.
This might be through a number of communications, but there are no specific requirements for this.
Here the court held that none of the communications made by Ms B provided sufficient information of a personal grievance (remember the November letter didn't count but even if it did, that wasn't sufficient).
The employer had no way of knowing the reason why Ms B was raising a personal grievance and without this, the employer had no means of addressing Ms B's concerns.
Accordingly, the threshold under the Employment Relations Act 2000 for raising a personal grievance was not met, and no valid personal grievance was raised by Ms B.
The lesson from this for employment professionals is don't use without-prejudice correspondence unless you do not want to rely upon it in court.
* Mary-Jane Thomas is a partner at Preston Russell Law. She is always interested in ideas for articles. Email her at Mary- Jane.Thomas@prlaw.co.nz.
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