ERA notes significant hurdles the worker must overcome in substantive claims despite granting leave to proceed with unjustified dismissal
A credit controller employed from October 2022 was dismissed in July 2024 for ongoing lateness and timekeeping issues after receiving verbal, written, and final written warnings over an eighteen-month period.
The worker contacted an advocate within weeks of dismissal, seeking assistance to raise a personal grievance for unjustified dismissal, but the grievance was not raised until November 2024, 123 days after dismissal and 34 days outside the statutory 90-day time limit.
The employer refused to consent to the grievance being raised out of time, arguing the worker failed to provide sufficiently definitive instructions to his advocate to file within the required period.
The preliminary determination addressed whether exceptional circumstances warranted granting leave to raise the personal grievance after the statutory deadline expired.
Employment background and progressive discipline process
The employer is a personal loan company with branches throughout New Zealand. The worker was employed as a credit controller in October 2022, initially at the employer's support office and subsequently at two branch locations.
The worker was provided with an individual employment agreement, which included a clause on punctuality and set out a resolution of employment relationship problems provision, including notification that a personal grievance must be raised within 90 days.
Following the worker's commencement, he was late to work on a number of occasions. The worker, who had personal issues at that time, worked late on these occasions without management approval. The employer addressed its concerns about his punctuality with the worker.
A continuation of the lateness resulted in a meeting in late March 2023, and a verbal warning was issued. The worker was also provided with access to employer-provided EAP sessions, which he attended. Two further incidents of late attendance at work resulted in a meeting in early June 2023.
Written and final warnings leading to termination
The worker provided reasons for his lateness on the two occasions in June 2023. The employer accepted one explanation but not the other, and a written warning was issued. The warning letter advised that a further incident might result in a final warning.
In September 2023, the worker was invited to a disciplinary meeting in relation to a number of instances of lateness that had taken place during July, August, and September 2023.
A subsequent meeting was scheduled for the worker to provide his responses to the allegations. A final written warning was issued to the worker in early October 2023 with the advice that it was valid for a 12-month period.
In July 2024, the worker was invited to a meeting to discuss his ongoing lateness at work and timekeeping. In the letter setting out the allegations, the worker was invited to attend a meeting and was advised that if the allegations were substantiated, termination of his employment might result. After the meeting, the worker was provided with time to consider his response to the allegations.
Steps taken to raise personal grievance after dismissal
Following a resumption of the meeting in mid-July 2024, the worker was advised that his employment was being terminated and he would be paid a month's salary in lieu of notice. In accordance with the statutory 90-day time limit, the worker had until early October 2024 to raise his personal grievance.
Following his dismissal, the worker contacted an advocate by late August 2024 to seek assistance in raising a personal grievance.
In an email response, the first advocate wrote that he thought the employer acted unreasonably and the worker had a case for unjustified dismissal, and he intended to assist.
In early September 2024, the first advocate informed the worker by email that he was too busy and unable to help, but advised that his colleague would contact him. The second advocate stated in his untested affidavit evidence that he contacted the worker in mid-September 2024 and they arranged to have a discussion the following day.
At that time, the second advocate stated that he had personal issues which had affected his concentration and he did not, as arranged, call the worker on the following day.
The worker and second advocate spoke in mid-September 2024. The following day, the second advocate confirmed by email that he would act for the worker, stating he believed the worker had solid grounds to raise a personal grievance for unjustified dismissal.
Timeline of communications and grievance raising
The second advocate invoiced the worker for his services in late September 2024. The statutory 90-day time limit expired in mid-October 2024. In late October 2024, the worker emailed the second advocate asking if they were still looking to proceed, as he hadn't heard back.
The personal grievance was raised in writing in mid-November 2024, 123 days after the worker's dismissal and 34 days after the expiry of the 90-day time limit. In late November 2024, the employer advised that it would not accept the personal grievance as it had been raised outside the statutory time frame and that it would not consent to it being raised out of time.
In early December 2024, the worker raised a statement of problem seeking leave to raise the personal grievance and acknowledging that the grievance had been raised outside the statutory 90-day time limit.
Worker's submissions on exceptional circumstances
The second advocate submitted that the worker made reasonable arrangements to have the personal grievance raised on his behalf, and the lateness of raising the personal grievance arose from his own miscalculation of the relevant dates.
This miscalculation, the second advocate attributed to the fact that he was experiencing a period of personal upheaval and health strain.
It was submitted that the error was solely attributable to the actions of the worker's advocate and not attributable to any actions on the part of the worker.
Employer's submissions opposing leave application
The employer submitted that the onus was on the applicant to establish that he made reasonable arrangements for his advocate to raise a personal grievance on his behalf within the 90-day period.
It was submitted that the evidence supplied on behalf of the worker did not support a determination that he provided sufficiently definitive instructions or directions, expressly or by implication, to his advocate to file a personal grievance on his behalf. It was submitted that the email evidence showed minimal interaction between the worker and second advocate.
While the second advocate stated in the email to the worker in mid-September 2024 that he believed he had solid grounds to raise a personal grievance, there was no evidence of communications between them within the 90-day period.
The next email communication was in late October 2024 when the worker emailed the second advocate asking if they were still looking to proceed.
It was submitted that the worker had been provided with information that a personal grievance must be raised within 90 days in the employment agreement; therefore, he knew or ought to have known that to raise a personal grievance, he needed to ensure he made reasonable arrangements with his advocate within the 90-day period.
Authority's analysis of reasonable arrangements limb
The ERA considered whether the worker made reasonable arrangements to have the grievance raised on his behalf by an agent, and whether the agent unreasonably failed to ensure the grievance was raised within the required time.
The Authority found that the worker was a person inexperienced in employment law matters and therefore sought to rely on the advice of his advocate. The worker had contacted an advocate to seek assistance with raising a personal grievance by late August 2024.
After the first advocate informed him that he was unable to act, the second advocate made contact with the worker, and following a slight delay, they spoke in mid-September 2024. After that call, the second advocate emailed the worker and advised him that he believed he had solid grounds to raise a personal grievance for unjustified dismissal.
Following the call and email, the worker provided the second advocate with documents and information, and was provided with an invoice in late September 2024 for services.
Despite the second advocate's advice regarding the viability of raising a personal grievance and the invoice in mid-September 2024, there was no evidence after that date to support the worker having instructed the second advocate to proceed with raising the personal grievance.
The ERA accepted that the worker was inexperienced in employment law matters, however he had been provided with the employment agreement containing the resolution of employment relationship problems provision and an explanation that a personal grievance had to be raised within 90 days.
Failure to provide definitive instructions determination
On that basis by mid-September 2025, the worker should have been aware that the 90-day time limit was due to expire in early October. Despite having knowledge of the time limit expiry date, the ERA found that the worker failed to instruct the second advocate to proceed with raising the personal grievance.
The Authority found support for this view in the worker's email dated late October 2024, in which he enquired of the second advocate whether they were still looking to proceed.
The worker seeking leave on the basis of exceptional circumstances must be able to establish that during the whole of the 90 statutory time period, he was unable to consider raising a personal grievance. If an applicant is shown to have been able to undertake actions during that period that indicate he or she was able to process information and make rational decisions accordingly, that will mitigate against the proposition that exceptional circumstances affected the applicant's ability to raise a personal grievance during the whole of the 90-day statutory period.
In this case, the employer submitted that the worker was able to make privacy requests during the 90-day period. This confirmed that the worker was capable of confirming with the second advocate that he had taken the necessary steps to raise the personal grievance with the employer.
In the circumstances of this case, the ERA found that the worker failed to make reasonable arrangements for the second advocate to raise his personal grievance.
Notice of dispute and minimal prejudice assessment
The ERA was not persuaded that the employer had no indication, or at least suspicion, that the worker was intending to raise a personal grievance about his dismissal.
The first advocate, in his email in late August 2024, requested that the worker obtain documents relevant to the dismissal, namely the invitation to the final meeting and the outcome letter, and suggested he request the entire HR file.
In the email the second advocate sent to the worker in mid-September 2024, he referred to having read the documents the worker had provided, which the ERA found were more likely than not the documents referred to in the late August 2024 email from the first advocate.
The worker also made privacy requests. While the Authority had no knowledge of the exact nature of these requests, the ERA found that the employer should have had some indication from these requests that the worker might be contemplating a claim in relation to his dismissal. It was also the case that the delay outside of the statutory time limit was not lengthy.
The Authority also took into account the fact that the worker contacted a representative in a timely manner following his dismissal. The ERA noted that whilst it considered it just to grant leave to the worker to raise his grievance outside the statutory 90-day time limit, this was not to be taken as an indication of the merits of his substantive claims, in which some significant hurdles would need to be overcome.
