An otherwise unremarkable personal grievance claim by an ex-employee against Pact Group became the subject of two time and money wasting preliminary hearings, first in the Employment Relations Authority (ERA) and then the Employment Court.
2023-NZERA-239.pdf 12 May 2023, Member Peter van Keulen
2023-NZEmpC-235-Pact-Group-v-Sheridan.pdf (employmentcourt.govt.nz) 20 December 2023, Judge Smith
Van Keulen’s determination notes:
[1] Roseanne Sheridan was employed by Pact Group as a community support worker. In January 2021 there was an incident at work, which caused Ms Sheridan to suffer from PTSD. Whilst Ms Sheridan returned to work in the days following the incident after a short period of time she took time off. Ms Sheridan was subsequently approved for ACC coverage and received ACC related compensation whilst she remained off work.
[2] As time progressed in 2021, there were some discussions between Pact and Ms Sheridan about a return-to-work programme. Ultimately a return to work never eventuated as later in 2021 Pact undertook a process with Ms Sheridan to ascertain her fitness for work and as a result of that process Pact terminated Ms Sheridan’s employment.
[3] Ms Sheridan was unhappy with the process and the decision to terminate her employment and she says, that as a result, she raised a personal grievance for unjustifiable dismissal through her union, E Tū (the Union).
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[37] Ms Sheridan’s personal grievance for unjustifiable dismissal was raised within the required time frame and I do have jurisdiction to investigate and determine her claim.
Pact Group filed in the Employment Court, a challenge to this ERA determination, asserting that Sheridan had, through her union, raised her personal grievance claim just outside 90 day limit (one day late).
The Employment Court found that Pact Group had given Sheridan notice of termination on Wednesday 28 July 2021, and she was entitled to a notice period of two full weeks meaning her last day would be COB Wednesday 11 August 2021, and her 90 day limit to raise a grievance would be COB Tuesday 9 November. But she was shorted by one day and that error was replicated all the way to the Court.
[4] Pact wrote to Ms Sheridan on 28 July 2021, explaining the reasons for its decision and gave notice in the following sentence: “Therefore, this letter is notice that your employment with Pact will end two weeks from today, which will be Tuesday 10 August 2021”.
[5] Ms Sheridan’s union, E tū, wrote to Pact on 8 November 2021 to raise a personal grievance.
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[50] Pact Group’s challenge to the Authority’s preliminary determination is unsuccessful and it is dismissed.
Likely impact on future costs award
Pact Group’s conduct during the litigation would have unnecessarily increased the costs of the other party. If Pact successfully defends the personal grievance claim, it is unlikely to be awarded costs – an ERA Member or judge can order costs to lie where they fall. If Pact loses, it is likely to face an uplift in costs liability.
That’s not such a big deal for an organisation funded by the health budget. But the emotional impact on Pact’s former employee Roseanne Sheridan who was, according to Member van Kuelen, suffering from PTSD as a result of a workplace incident, is likely to have been significant.
It’s callous, but not the worst example we’ve seen in that industry.
*The ERA and Court found that there was no rounding error.