Employees with good claim fail due to delayed personal grievance…

Two employees working in a restaurant as a chef and kitchen hand have been dismissed by their employer for poor performance.

The Employment Relations Authority held that the employer failed to act as a fair and reasonable employer could in the circumstances by failing to raise any concerns with them, and by failing to give them an opportunity to respond to those concerns. The ERA found that the dismissals were unjustified as their employer had wrongly assumed that there was a two month trial provision in their individual employment agreements.

The ERA held that the two employees did not raise their personal grievance within the 90 day statutory framework. The ERA found that the employees’ primary purpose of meeting their employer after their dismissal was to discuss visa quotas and immigration matters, not personal grievance claims which their employer could address and perhaps resolve.

In a second meeting attended by one of the employees, the employee failed again to raise a personal grievance for unjustified dismissal. Instead, he had his employer sign an employment agreement which enabled his friend to obtain a work visa.

The ERA concluded that the two employees did not have exceptional circumstances which would enable them to raise their personal grievance out of time. Despite claiming that their previous lawyer had told them that they had 94 days to raise a personal grievance, there was no evidence that they had directed the lawyer  to raise a grievance on their behalf or that their lawyer had unreasonably failed to do so. As well as this, the employees witness statements omitted any mention of a personal grievance being raised with a previous lawyer.

Alan Knowsley
Employment Lawyer Wellington