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Accident Compensation Cases

Twentyman v The Warehouse Ltd (EMC, 20/12/16)

Judgment Text

JUDGMENT OF JUDGE K G SMITH 
Judge K G Smith
Introduction 
[1]
Ms Barbara Twentyman claims to have personal grievances against The Warehouse Limited (TWL), arising from two incidents she says occurred at work; a shoulder injury sustained while handling a heavy packing case and other health problems caused by inhaling concrete dust during the refitting of TWL's Taupo store where she worked. 
[2]
The Employment Relations Authority (the Authority) dismissed Ms Twentyman's proceeding because it held she did not raise her grievances within time.1
| X |Footnote: 1
Twentyman v The Warehouse Ltd [2015] NZERA Auckland 39Has Litigation History which is not known to be negative[Blue] 
A penalty was imposed on Ms Twentyman for a breach of good faith and for a breach of her employment agreement. Ms Twentyman challenges those decisions. TWL says Ms Twentyman's claims are not personal grievances, if they are they were not raised in time, and the penalty was justified. 
Background 
[3]
Ms Twentyman began work as a casual employee in TWL's Taupo store on 19 June 2009. On 1 March 2010, she joined the permanent workforce. 
[4]
Her work included night-filling duties, in a department called “Head to Toe” or “H2T”, referring to the clothing and shoe department. Her duties included unpacking clothing from large packing cases called stillages, followed by sorting that clothing for sale by size and colour (referred to as colour-blocking and sizing). When full the stillages are heavy requiring more than one person to lift them. Empty stillages are also reasonably heavy and they are awkward to handle because of their size. 
Shoulder injury 
[5]
On 3 February 2012, Ms Twentyman injured her left shoulder while handling a stillage she had emptied. While the injury was reported to a supervisor that night, a formal report describing the incident was not completed until 3 May 2012. In that report she described her injury as having occurred when she pushed an empty stillage to the edge of the full stillage on which it was sitting and gripped the base of it to stop it from falling onto the floor. She leaned forward to stop the stillage tipping over, and succeeded in doing so before it hit the floor, but felt a pain in her shoulder. 
[6]
Despite sustaining this injury Ms Twentyman continued to work. Aside from rostered days off, leave days, and two days on sick leave she worked as normal. On 16 March 2012, she obtained a medical certificate from her doctor, Dr Fraser, who certified her as unfit to work for 10 days. Dr Fraser certified Ms Twentyman as unable to continue her normal hours of work or to do selected or alternative duties. 
[7]
A claim for accident compensation under the Accident Compensation Act 2001 for a work-related injury was made on 19 March 2012. The Accident Compensation Corporation (ACC) advised Ms Twentyman that TWL, as an accredited employer under the ACC Partnership Programme, would manage all aspects of her claim. She was advised by ACC that this management would include deciding what help she may be eligible for such as treatment costs or weekly compensation. TWL contracted management of its obligations under that partnership programme to Care Advantage (later known as Gallagher Bassett Care Advantage). 
[8]
On 26 March 2012 Ms Twentyman resumed work. 
3 April letter 
[9]
On 3 April 2012 Ms Twentyman gave a letter to the Taupo Store Manager, Ms Sally Rison, complaining about Ms Te Rangi Nicholson who at that time was the store's Assistant Manager. Ms Twentyman's letter stated she was raising a personal grievance. The relevant parts of this letter begin at para 2 where Ms Twentyman wrote: [CBD pg 161
“2.
I injured my shoulder one night while working and informed Frank and Mari who filled out the [night-fill] book (neither knew where the H & S Accident/[Incident] forms were or how to fill them out). Because of my injury I took 2 sick days off and when I returned Te Rangi pulled me up into the [manager's] office and said that [I'm] lying about my shoulder because I wrote the letter about being left out of the loop with the training at Fraser Cove. ”
[10]
That complaint was followed by four amplifying paragraphs. In the paragraph numbered 3 Ms Twentyman wrote: 
“3.
I took 10 days annual leave because my shoulder was very sore hoping it would recover. I came back and started my shift as usual and came across some chair covers in the furniture aisle, Daicy was there so I asked her where they came from and that they were on clearance. She advised that she [wasn't] sure where they came from and that they were on clearance. I put them on hold so I could purchase them the next day. When I came in the next day I [couldn't] find them so I started asking the team members if they had seen them. I then went to Te Rangi and I asked her if she has seen the chair covers, she informed me that she will call me up to the office to discuss them. She said that I had stashed them, that it was suspicious that they turned up when I came back from leave and that she will be doing a full investigation on me. I was informed by our security officers that this matter had been taken too far which I agreed with. ”
[11]
The letter continued: 
“4.
I felt very belittled and abused when Te Rangi introduced me to ‘my replacement’ and that I will no longer be doing [stillages]. To rub salt in [the] wound she also stated that my replacement does a better job as I [don't] colour block and size. 
5.
I was informed by my supervisor that Te Rangi had said that she [doesn't] see what I do at nights. This hurts my feelings as I [genuinely] enjoy my job and put 100% into everything I do in H2T. 
6.
When I called Te Rangi today to inform that her that my shoulder is actually broken her reply was ‘I [don't] care, as long as you turn up for work tonight’, which again hurt my feelings. ”
[12]
Ms Twentyman's letter ended: 
“This whole situation is causing me so much stress physically and mentally and it is now causing [financial] stress as my case manager at ACC has informed me that my paperwork has been lost by Te Rangi. My case manager also advised me that the reason Te Rangi [couldn't] fill in my paperwork is because I [couldn't] be contacted because I live out of town when [in fact] I was in town. ”
[13]
Ms Nicholson responded and in her reply rejected these complaints. Ms Nicholson acknowledged there had been a conversation between her and Ms Twentyman about chair covers, but it did not involve any allegation of impropriety. She denied introducing Ms Twentyman to her replacement, because there was no replacement. Ms Nicholson said that she never said, or suggested, Ms Twentyman had lied about her injury. She denied making any statement to the effect that she did not care about what had happened as long as Ms Twentyman turned up for work. For completeness, Ms Nicholson also denied that she had lost or removed any paperwork relating to Ms Twentyman's ACC claim, adding that she did not have anything to do with administering that claim. 
[14]
Ms Rison investigated these complaints and invited Ms Twentyman to a meeting to discuss them. Throughout this inquiry Ms Rison treated Ms Twentyman's complaints as personal ones about Ms Nicholson. In any event, by agreement, the investigation into these complaints ended on 8 May 2012, because Ms Twentyman did not want matters to be taken any further. 
Remaining unfit for work 
[15]
Ms Twentyman worked for several hours on 27 March 2012 and then worked normally from 30 March to 3 April 2012. However, on 5 April 2012 she was diagnosed as having a rotator cuff sprain and acute sub-acronimal bursitis rendering her unfit for work. The medical certificate provided for Ms Twentyman said she would be able to return to work on 23 April 2012. However, on 19 April 2012 a further medical certificate was provided certifying Ms Twentyman as unable to work for 30 days. On 15 May 2012, another medical certificate was provided certifying her as unfit to work for 30 days and confirmed that she had been referred to a medical specialist. That medical certificate was renewed on 12 June 2012 when Ms Twentyman was again certified as unfit for work for 30 days. Throughout this period when Ms Twentyman was unfit for work, her claim for ACC compensation was being processed by Care Advantage. That claim was finally accepted on 3 July 2012 and weekly compensation started. 
[16]
On 10 July 2012, Ms Twentyman provided another medical certificate certifying her as unfit to work for 30 days. On 18 July 2012, and again on 26 July 2012, Ms Twentyman participated in a rehabilitation monitoring meeting with her manager, Ms Rison, that discussed her possible return to work performing light duties. 
[17]
On 31 July 2012, two conflicting medical certificates were received by TWL. The first one certified Ms Twentyman as unfit to work for 30 days from 6 August 2012. The second one declared her fit to work three hours per day, four days per week for eight weeks from 6 August 2012. That second medical certificate was followed by further discussions with Ms Twentyman about light duties. Ms Twentyman's doctor confirmed her suitability for light duties provided she did not work above head height, work with her damaged arm, or lift weights of more than one kilogram. By 10 April 2013, Dr Fraser was able to further certify Ms Twentyman as eligible for light duties provided the tasks assigned to her did not include heavy lifting, pulling, carrying, or repetitive movements. 
[18]
TWL considered colour blocking and sizing were light duties complying with Dr Fraser's certificates. In anticipation of her return to work there were meetings between TWL, Care Advantage and Ms Twentyman to discuss her rehabilitation and to write a rehabilitation plan including providing for light duties. The first rehabilitation plan was signed on 10 July 2012. As part of that plan she agreed to participate in a workplace assessment and in a proposed programme to gradually return to work. Its stated purpose was to have her return to work on or before 7 August 2012. 
[19]
Part of this plan was an agreement by Ms Twentyman to meet TWL's Taupo Manager weekly, to complete a rehabilitation monitoring form, and to identify any issues or concerns she might have. Ms Twentyman was also to provide medical certificates to TWL, and Care Advantage, reflecting her capacity or incapacity for work until a full clearance was obtained. She accepted responsibility for contacting TWL and/or Care Advantage if her circumstances changed. Subsequently Ms Twentyman did not complete rehabilitation plans despite requests to do so. 
[20]
Ms Twentyman resumed work on light duties on 13 August 2012 working first three then four hours each day, three days each week. She did not undertake any duties for TWL after 29 October 2012. 
[21]
Eventually, on 6 November 2012, Ms Twentyman had an operation on her shoulder. The following day her surgeon provided a medical certificate declaring her unfit for work for 14 days. That certificate was updated on 20 November 2012 when she was declared unfit to work for 50 days. A subsequent certificate declared her unfit to work for 60 days from 7 January 2013. That certificate was followed by Dr Fraser's certificate of 10 April 2013 previously mentioned. However, on 17 April 2013, Dr Fraser certified Ms Twentyman as unfit for all work from that date for 30 days. These certificates culminated in one dated 7 October 2013 declaring her unfit for work, but stating that she was expected to return to the workforce within one to two years when her shoulder had completely recovered. 
Le Pine & Co letter 
[22]
Matters reached a head on 14 March 2013 when Ms Twentyman's lawyers, Le Pine & Co, wrote to TWL to raise personal grievances on her behalf. That letter made the following allegations: 
1.
TWL failed to protect Ms Twentyman's safety by not providing assistance for heavy lifting; 
2.
There were breaches of good faith in dealing with her injury; and 
3.
TWL failed to protect her health by subjecting staff to breathing concrete dust. 
[23]
The first of these allegations was about Ms Twentyman's accident on 3 February 2012. The alleged breach was of TWL's health and safety obligations to her by failing to provide sufficient staff to assist with heavy lifting or instructing staff not to assist with heavy lifting. 
[24]
The breaches of good faith referred to included an allegation that Ms Twentyman's supervisor had completed an accident report in the night-fill book, but the relevant page from the book had been ripped out. Ms Nicholson was also said to have disputed there being any report about the incident, alleging Ms Twentyman had been lying about having claimed to have hurt herself “on the job”. That allegation was coupled with a complaint that TWL had been actively resisting Ms Twentyman obtaining ACC weekly compensation. 
[25]
Finally, Le Pine & Co made allegations on Ms Twentyman's behalf that she had been exposed to concrete dust caused by grinding or sanding the floor of the Taupo store, claiming that she, and other staff, were subjected to breathing concrete dust each night during a refit. This letter claimed Ms Twentyman was “subjected to nightly breathing fine white concrete dust” during what was said to be a six-week refit and that no safety equipment had been provided. The working environment in the store was described as “like working in a white cloud”. The extent of the injuries suffered by Ms Twentyman were described as: 
“Ms Twentyman was not provided with glasses or a facemask to protect her eyes and lungs. Ms Twentyman suffered swollen eyes, coughing, nausea and discomfort. Along with her injured shoulder her ailments from inhaling the dust resulted in her declining to continue to work. ”
[26]
It was said that Ms Twentyman was not provided with safety glasses or a face mask to protect her eyes and lungs. 
[27]
This letter was the first occasion on which a claim had been made on Ms Twentyman's behalf that a page had been removed from the night-fill book or about an alleged health risk caused by inhaling concrete dust. 
[28]
Le Pine & Co's letter concluded with an assertion that TWL's way of dealing with Ms Twentyman's injury was eroding the employment relationship and needed to be addressed. An invitation to attend mediation was extended to TWL. 
[29]
TWL replied on 28 March 2013. It did not accept Ms Twentyman had a valid personal grievance. 
[30]
In due course Care Advantage made a decision to stop Ms Twentyman's weekly ACC compensation because of difficulties experienced in having her continue to participate in her rehabilitation planning and for refusing to attend meetings to address her rehabilitation. Weekly compensation payments ceased, although that decision was subsequently reversed by an ACC reviewer. 
[31]
By June 2013 TWL had become suspicious of Ms Twentyman, and organised surveillance of her by a licensed private investigator; Mr Gasser-Gray. The private investigator's reports were relied on to support the penalty that was imposed by the Authority and to cast doubt on her evidence. 
[32]
Ms Twentyman's employment was terminated for serious misconduct on 2 March 2015. There is no separate challenge of that dismissal before the Court. 
The Authority's determination 
[33]
Ms Twentyman's proceeding in the Authority alleged breaches of express and implied terms of her employment agreement and personal grievances. 
[34]
The Authority dismissed all of Ms Twentyman's claims. In doing so it held that her alleged personal grievances had not been raised within time and that TWL had not consented to them being raised late. The Authority accepted TWL's claim that Ms Twentyman had breached her duty of good faith and an implied term of her employment agreement. A penalty of $1,500 was imposed on her and made payable to TWL. 
The Challenge 
[35]
Ms Twentyman's challenge was confined to her alleged personal grievance for unjustified disadvantage in her employment. Initially, the remedies claimed by Ms Twentyman were inadequately articulated in her pleadings. Following a direction by the Court, she filed a memorandum stating the monetary remedies being claimed as follows: 
a)
For the period from 5 April 2012 to 13 July 2012 the difference between what she received of $3,956.32 (net) and what she said she should have received of $8,380 (gross). 
b)
For the period 1 September 2013 to 30 November 2013 payment of wages based on a 40-hour week at a rate of $15.46 (gross) per hour. 
c)
Reimbursement for lost holiday pay. Ms Twentyman was seeking payment for 136 hours of leave of $15.46 (gross) per hour. 
d)
Payment for 10 days sick leave from 16 March 2012 to 23 March 2012, at a rate of $15.46 (gross) per hour for eight hours per day. 
e)
Reimbursement of physiotherapy and doctors' surcharges of $345. 
f)
The difference between the wages she would have received as a full-time employee of TWL, and the compensation she received as her ACC entitlement for the period starting on 21 April 2012 to the date of her memorandum, which was 26 February 2016. 
[36]
TWL denied any personal grievances had been raised within time and sought to preserve the penalty that was imposed. It also pleaded that there were no wages, holiday pay or other sums to which Ms Twentyman was entitled that were unpaid. It also relied on s 317(1) of the Accident Compensation Act 2001. 
The issues 
[37]
The issues in this case are: 
a)
Did Ms Twentyman have personal grievances which she raised with TWL within the period of 90 days beginning with the date on which the actions alleged to amount to personal grievances occurred? 
b)
If her personal grievances were not raised within those 90 days has TWL consented to them being raised after the expiration of that period? 
c)
If Ms Twentyman raised her personal grievances within those 90 days, or TWL consented to them being raised after the expiration of that period, has Ms Twentyman suffered any disadvantage within the meaning of s 103(1)(b) of the Employment Relations Act 2000 (the Act)? 
d)
If Ms Twentyman has suffered a disadvantage, what remedies (if any) should be awarded? 
e)
Should a penalty have been imposed on Ms Twentyman and, if so, in what amount? 
Did Ms Twentyman have personal grievances which she raised with TWL within 90 days? 
[38]
In her amended statement of claim, Ms Twentyman pleaded that her personal grievances arose from breaches of her employment agreement with TWL by that company: 
a)
failing to provide a healthy and safe workplace; and 
b)
failing to maintain a relationship of trust, confidence and fair dealing. 
[39]
No issue was taken by TWL as to whether the alleged breach of failing to maintain a relationship of trust, confidence and fair dealing had been raised in the letters of 3 April 2012 or 14 March 2013. Ms Twentyman relied on those letters as having raised her personal grievances. There was no evidence they had been raised in any other way. 
Section 114 
[40]
A personal grievance must be raised within 90 days beginning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the employee. That period is contained in ss 114(1) and (2) of the Act which read: 
“114
Raising personal grievance 
(1)
Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days beginning with 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. 
(2)
For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address. 
 ”
[41]
If the employer does not consent to the personal grievance being raised after the expiration of that 90-day period an application may be made to the Authority for leave to do so.2
| X |Footnote: 2
Employment Relations Act 2000, s 114(3). 
 
[42]
No formality is required to raise a personal grievance. In Creedy v Commissioner of Police3 the Court considered whether a claim for unjustified disadvantage had, in that case, been raised within 90 days to comply with s 114(1) of the Act. In Creedy the employee's representative had written a letter to the Commissioner of Police stating:4
| X |Footnote: 4
At [31]. 
 
“ … by this letter Sergeant Creedy serves notice that he commences a personal grievance with you pursuant to s 103 of the Employment Relations Act 2000 
… ”
[43]
The letter to the Commissioner also said:5
| X |Footnote: 5
At [31]. 
 
“It is claimed that one or more of Sergeant Creedy's conditions of employment is or are affected to his disadvantage by the unjustified way in which you, as his employer have applied the disciplinary process to him. ”
[44]
The Commissioner's immediate response was to ask for details of the alleged unjustified actions. No answer was provided. The Court concluded that this letter was insufficient to raise a personal grievance.6
| X |Footnote: 6
At [35]. 
The Court held that raising a personal grievance is:7
| X |Footnote: 7
At [36]. 
 
“ … the notion of the employee wanting the employer to address the grievance that means it should be specified sufficiently to enable the employer to address it. So it is insufficient, and therefore not a raising of the grievance, for an employee to advise an employer that the employee simply considers that he or she has a personal grievance or even by specifying the statutory type of the personal grievance as, for example, unjustified disadvantage in employment …  ”
[45]
Later in the decision the Court said:8
| X |Footnote: 8
At [37]. 
 
“It is clearly unnecessary for all of the detail of a grievance to be disclosed in its raising, as is required, for example, by the filing of a statement of problem in the Employment Relations Authority. However, an employer must be given sufficient information to address the grievance, that is to respond to it on its merits with a view to resolving it soon and informally, at least in the first instance. ”
[46]
In Creedy the Court was satisfied a personal grievance had not been raised within time. The best indication of the failure to do so was the response from the Commissioner, not accepting a grievance had been raised and asking for further information.9
| X |Footnote: 9
At [38]. 
 
[47]
With that background, it is necessary to consider the letters of 3 April 2012 and 14 March 2013. 
[48]
Ms Swarbrick, counsel for TWL, submitted that Ms Twentyman's letter of 3 April 2012 did not raise personal grievances. This letter was intended to complain about Ms Nicholson and was understood in that way by Ms Twentyman and TWL. She submitted that the letter was not about TWL's failure in its duty to provide a healthy and safe workplace arising from either the shoulder injury, the dust complaint, or for not maintaining a relationship of trust, confidence and fair dealing. 
[49]
I agree with those submissions. Ms Rison treated this letter as a complaint by one staff member about another staff member and investigated it in that way. Ms Twentyman knew her letter was being treated as such and did not object, or otherwise indicate it contained personal grievances for TWL to address. 
[50]
Read as a whole, references in that letter to the shoulder injury were only provided as a backdrop for the complaint about Ms Nicholson. It is mentioned in paras 2, 3 and 6, but only to justify the other comments that were made. Furthermore, the letter does not mention concrete dust, or the allegation that Ms Twentyman was not supplied with safety equipment to protect her from that dust. 
[51]
Finally, even if personal grievances were raised in that letter, they were resolved on 8 May 2012 when Ms Rison and Ms Twentyman agreed the complaint would not be taken any further. 
[52]
The next matter is whether the letter from Le Pine & Co raised personal grievances. As has already been discussed, several alleged breaches by TWL were stated in that letter. 
[53]
That letter contained sufficient information to raise personal grievances within the meaning of s 114(1) of the Act. It described the alleged breaches, provided adequate background information about them, and invited TWL to address them at least to the extent of attending mediation “to see if these issues can be worked through”. However, that letter was written more than a year after she sustained her shoulder injury and just short of a year after work on grinding the floor in the Taupo store had occurred. No application had been made to the Authority for leave to raise a grievance outside of the 90-day period. 
[54]
It follows that Ms Twentyman did not raise her personal grievances with TWL within the 90-day period required by s 114(1) because her letter of 3 April 2012 was insufficient to do so and the Le Pine & Co letter was too late. 
If her personal grievances were not raised within those 90 days has TWL consented to them being raised after the expiration of that period? 
[55]
Having not raised her grievances within time, or obtained leave from the Authority to raise them, the next issue is whether TWL nevertheless consented to them being raised after that period. 
[56]
TWL elected to respond comprehensively by addressing each allegation. Its reply was written by Ms Marshall, its Employment Relations Manager, and began by stating the company did not accept Ms Twentyman had a valid personal grievance. However, the way that remark was made indicated it was a commentary on the substance of the allegations making up Ms Twentyman's personal grievances and was not an attempt to take any point about the timeliness of Le Pine & Co's letter. TWL pointed out that the refit started in 2012 not 2013 as Le Pine & Co stated. It disputed the assertion that Ms Twentyman did not have assistance with lifting heavy objects. It said facemasks and safety glasses had been supplied as soon as the matter was brought to the manager's attention. Significantly, the company noted this letter was the first time it had been told that Ms Twentyman claimed to have suffered harm from inhaling dust. After that comprehensive response TWL agreed to attend mediation. 
[57]
Correspondence continued. On 16 April 2013, Ms Twentyman provided a brief letter to TWL. It contained a claim by Ms Twentyman that she was “taking a personal grievance out” for what was referred to as treatment she had received from Care Advantage and managers of TWL in Taupo and a complaint about wages. That letter was devoid of information to explain the grievance, but a request for mediation was made. Ms Marshall wrote to Le Pine & Co on 17 April 2013 providing time and wage records previously requested by that firm and took the opportunity to address Ms Twentyman's latest letter. Ms Marshall also addressed an allegation that Ms Twentyman had been ordered to leave the Taupo store when she was there shopping, having declined on the same day to have a rehabilitation meeting with the store's manager. 
[58]
In her letter Ms Marshall asked Le Pine & Co whether the personal grievance referred to by Ms Twentyman was one that had already been replied to in earlier correspondence or was a different matter. Ms Marshall said that if the grievance was a different matter she would reply directly to the law firm and that TWL would go to mediation on any new matter. 
[59]
Mediation took place on 5 June 2013 but was unsuccessful. 
[60]
Against that background, Ms Swarbrick submitted that TWL had not consented either expressly, or by implication, to personal grievances being raised after the 90-day period in s 114(1). Relying on Commissioner of Police v Hawkins, she submitted that the question of consent by conduct is a matter of fact and degree.10
| X |Footnote: 10
Commissioner of Police v Hawkins [2009] NZCA 209, [2009] 3 NZLR 381Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
The passage from that case relied on reads:11
| X |Footnote: 11
At [24]. 
 
“The real issue is not whether, in formal terms, the Commissioner ‘turned his mind’ to the extension, but rather whether he so conducted himself that he can reasonably be taken to have consented to an extension of time. ”
[61]
Ms Swarbrick submitted that attending mediation was not material, relying on Vulcan Steel Ltd v Wonnocott, where Chief Judge Colgan stated:12
| X |Footnote: 12
Vulcan Steel v Wonnocott [2013] NZEmpC 15, (2013) 10 NZELR 659Has Litigation History which is not known to be negative[Blue]  at [45]. 
 
“Although participation in the grievance resolution process by the employer has been a feature of a number of cases where implied consent has been found to have been given, that is not the test. ”
[62]
Similarly, in Ale v Kids at Home Ltd, Judge Inglis commented:13
| X |Footnote: 13
Ale v Kids at Home Ltd [2015] NZEmpC 209Has Litigation History which is not known to be negative[Blue]  at [34] (footnotes omitted). 
 
“It was also submitted that the defendant's apparently unconditional attendance at two mediations was reflective of implied consent. Ms Burke submitted that attendance at mediation must be viewed in context. I agree. While attendance at mediation may be taken as signifying consent to pursue a grievance out of time, much will depend on the circumstances. Mediation is effectively mandatory in this jurisdiction. This will often make it difficult for the Court to conclude that any confidence that consent has been given simply by the act of attending mediation without expressly stating that it is not to be construed as a waiver. Where, as here, there are a number of alleged grievances, some but not all of which are said to be within time, it will be difficult to conclude that attendance at mediation signifies consent. I do not accept that the defendant's attendance at mediation can reasonably be construed as implied consent to pursue a disadvantage grievance out of time having regard to the particular circumstances. ”
[63]
I accept that attending mediation where there is an ongoing employment relationship may not, by itself, amount to express or implied consent to a grievance being raised outside the 90-day time period. As Judge Inglis noted in Ale, attending mediation must be viewed in context. 
[64]
In the context of this ongoing employment relationship TWL did more than attend mediation with an employee. It disputed the substance of the allegations and generally engaged in addressing them. TWL's letter was written by its Employment Relations Manager, Ms Marshall, who was familiar with Ms Twentyman's circumstances. She knew before replying that the personal grievances in Le Pine & Co's letter were outside the 90-day time period. It was against that background she responded, addressed all of the matters raised, and stated TWL's preparedness to attend mediation, which it did. In explaining why TWL agreed to attend mediation, Ms Marshall said that it had agreed to do so in the past where a personal grievance had been raised out of time by an existing employee. She explained that this step was taken because of the ongoing employment relationship but TWL did not accept a personal grievance being out of time. Ms Marshall said it would have been preferable for her to have qualified TWL's reply by more clearly articulating the company's concerns about the timeliness of that letter. 

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