Posted on: Mar 27, 2013
An employee must raise a personal grievance with his or her employer within the period of 90 days from 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 (Employment Relations Act 2000, section 114).
Further to our article posted last month “90-day Rule for Raising a Personal Grievance”, there has been a recent case that has gone through the Authority and then the Court, and provides more clarification to the issue of when to start counting the 90 days from, and how a grievance can be raised.
In Wonnocott v Vulcan Steel Ltd, the Employment Relations Authority said receipt of a warning by the employee’s solicitor was receipt by the employee so time ran from the time of receipt of the warning by the solicitor.
Mr Wonnocott (the employee) raised a personal grievance on 23 March 2012 in relation to the issuing of a first written warning. The warning had been delivered, as requested by the employee, to the employee’s solicitor on 21 December 2011. A preliminary issue arose over whether the employee had raised the grievance within the statutory 90-day period. The employee claimed that he had raised the grievance within the 90-day period because he had not personally read the warning until 23 December when he received it from his solicitor.
The Authority determined that the grievance had not been raised within the 90-day period. It said the solicitor’s receipt and knowledge of the warning was in accordance with the solicitor’s instruction from the employee and that constituted receipt and knowledge of the warning by the employee.
However, this case then went on to the Employment Court, which resulted in a different issue being raised. The Court stated that consent to raising a grievance out of time can either be express or implied by conduct. What constitutes implied consent is a matter of fact and degree.
The Court pointed to various letters and emails from Vulcan which mentioned the personal grievance but did not address the issue of it being raised out of time as evidence of implied consent. For example, on 19 April 2012 Mr Wonnocott was invited by Vulcan to a disciplinary meeting. The invitation specifically confirmed that a grievance had been raised and Mr Wonnocott had “rights” to pursue this grievance.
On May 3 Vulcan confirmed by email that Mr Wonnocott had been dismissed. This correspondence also referenced the grievance. It however, only criticised the fact that Mr Wonnocott had not progressed this grievance since it was initially raised. On 30 May Vulcan claimed that Mr Wonnocott did not validly raise a personal grievance. However, its criticisms were directed only at the inadequacies of the information provided about the grievances, not the fact that it had been raised out of time.
The Court held that Vulcan did engage with Mr Wonnocott in the grievance process. Vulcan was professionally advised in relation to the grievance by legal counsel as well as an employment relations consultant. If it did not consent to the late raising of the grievance it would have advised Mr Wonnocott of this fact, before engaging in the grievance process.
The Court stated that Vulcan gave their implicit consent to the marginally late raising of the grievance.
Disclaimer
This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.
