The Employment Relations Authority has declined to give
leave to bring a personal grievance outside the 90 day time limit after an
employee alleged that her resignation was actually a constructive dismissal and
that she did not find out about the misunderstanding by the employer on the
circumstances of her resignation until the following year.
The ERA held that the employee had not raised a grievance
within the 90 days and that there were no exceptional circumstances justifying
an extension of that time to bring a personal grievance. Although the employee was suffering from
depression she still would have been capable of bringing a personal
grievance. She had been engaged in
university studies and had communicated with the employer about various matters
to do with her resignation and so was capable of bringing the personal
grievance if she had chosen to do so in time.
There were no reasons based on the justice of the case to
require an extension. Any breaches of
the duty owed to the employee must have occurred during the applicant’s
employment and rumours generated post the resignation do not breach the
employer’s duty to the employee. There
was also no evidence that the employer generated the rumours. There was also no evidence that the incident
which lead to the employee’s resignation was raised with the employer before
she resigned, so the employer could not have foreseen her resignation as a
consequence. There can therefore be no
constructive dismissal.
Alan
Knowsley
Employment
Lawyer Wellington
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