Personal grievance outside 90 day time limit declined…

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