ERA: Standard 90-day period to file not absolute
The Employment Relations Authority (ERA) recently dealt with a case involving a worker's claim of constructive dismissal against their former employer.
The case centred on the timeliness of the personal grievance claim and whether exceptional circumstances warranted granting leave for an out-of-time application.
This case highlights the complexities surrounding employment termination, particularly when work-related injuries and mental health issues are involved.
The worker, a truck driver, had been employed by a nationwide transport company since late 2017. The worker suffered a left-shoulder work injury in July 2020, which led to a series of medical treatments, including surgeries and pain management programmes.
Throughout this period, the worker was on various work statuses, ranging from fully unfit for work to fit for light duties.
In November 2022, a series of workplace incidents occurred. The worker complained about being threatened and subjected to an attempted assault by another employee. The employer initiated an investigation, but during this process, the worker made comments about self-harm, leading to contact with mental health professionals.
The employer then suspended the worker based on allegations of attempting to manipulate the investigation.
On 22 November 2022, the worker resigned via email. However, the exact date of employment termination became a point of contention. The worker argued that their employment didn't end until March 2023, citing continued payments from the employer until that time.
The employer, however, maintained that the employment ended in November 2022 when the worker resigned and was paid out in lieu of working a four-week notice period.
The ERA determined that the employment actually terminated on 19 December 2022, at the end of the worker's four-week notice period, in accordance with the employment agreement.
Under employment law, a personal grievance must typically be raised within 90 days of the alleged grievance occurring.
In this case, the worker's lawyer first raised the grievance on 9 June 2023, well outside the standard notification period.
The key issue for the ERA to determine was whether there were exceptional circumstances that justified granting leave for the grievance to be raised out of time.
The ERA considered evidence of the worker's mental state following the workplace incidents and subsequent termination. The decision noted:
"[The worker] was significantly affected or traumatised by workplace events that were materially connected to but preceded the termination of [the worker]'s employment."
This finding was crucial in determining whether the delay in raising the grievance was due to exceptional circumstances.
The ERA reviewed extensive medical and support service records. These included notes from a psychiatrist, Christchurch Resettlement Services (CRS), and hospital records.
The records showed fluctuations in the worker's mental state, including periods of suicidal ideation and panic attacks, as well as times when the worker felt more balanced.
The ERA also considered evidence from a social worker, who stated:
"[The worker] was completely traumatised after losing the job and was mentally unwell so not able to understand legal rights accurately and act on them."
While acknowledging this wasn't a medical diagnosis, the ERA accepted it as a reasonable summary from a lay perspective.
After reviewing the evidence, the ERA concluded that exceptional circumstances did exist. The decision stated:
"I find that [the worker] was unable to properly consider raising their personal grievance within 90 days of the termination of their employment and that state persisted until June 2023."
The ERA also had to consider whether it was just to grant leave for the out-of-time application. In making this determination, the Authority noted:
"Given this June 2024 report, it would be just to grant leave for [the worker]'s personal grievance claim regarding the termination of the employment to be considered and answered in accordance with its merits."
The ERA emphasised that the employer's ability to defend against the constructive dismissal claim had not been materially affected by the delay.
In conclusion, the ERA granted leave for the worker to raise their personal grievance out of time, stating:
"Exceptional circumstances are established and it is just to grant leave for [the worker] to raise a personal grievance of constructive dismissal out of time."
This case serves as a reminder for HR professionals about the potential complexities surrounding employment termination, particularly when work-related injuries and mental health issues are involved.
It underscores the importance of clear communication during the termination process and the need to be aware of potential long-term implications of workplace incidents.
Moreover, it highlights that the standard 90-day period for raising a personal grievance is not absolute. In cases where exceptional circumstances exist, such as significant trauma or mental health issues stemming from workplace events, the ERA may grant leave for out-of-time applications.
