THEMES IN EMPLOYMENT LAW

Transcription

1 THEMES IN EMPLOYMENT LAW August 2005 APPLICATIONS FOR LEAVE TO RAISE A PERSONAL GRIEVANCE OUT OF TIME: AN OVERVIEW OF THE LAW NB: The comments included in this publication should not be read as representative of the view of the Court, Authority, or the Department of Labour. Rather, any view expressed is in the nature of an opinion only. Crown Copyright All rights reserved. No part may be reproduced or copied in any form or by any means without the prior permission of the copyright owner except in accordance with the provisions of the Copyright Act All requests for reproduction of any material in the Themes on Employment Law should be addressed to:department of Labour, Workplace Group, Information & Promotion, Senior Advisor - Knowledge Management, PO Box 3705, Wellington. WARNING: The doing of any unauthorised act in relation to a copyright work may result in both a civil claim for damages and criminal prosecution.

2 I INTRODUCTION When an employee wishes to take issue with some action or inaction by his or her employer, but fails to raise a personal grievance within the 90 day time limit provided for by statute, the employee faces the prospect of obtaining the employer s consent to raising the grievance later in time. If that consent is not forthcoming, the employee s only remaining option is to apply to the Employment Relations Authority for leave to raise a personal grievance out of time. This editorial provides an overview of the law relating to such applications for leave. In particular it examines ss114(4) and 115 of the Employment Relations Act 2000 ( ERA ) and the only two Employment Court cases decided under those sections. II BACKGROUND: RAISING A GRIEVANCE Section 114(1) of the ERA provides that an employee who wishes to raise a personal grievance 1 must do so 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. Section 114(2) of the ERA specifies that a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer aware that the employee alleges a personal grievance that the employee wants the employer to address. The ERA replaced the requirement under the Employment Contracts Act 1991 ( ECA ) to submit a grievance with the requirement to raise a grievance. That change caused speculation that the ERA lowered the threshold that an employee was required to meet to properly alert his or her employer to the existence of a personal grievance. However, a decision of the Employment Court in may have put an end to those speculations. The Court commented that, in the context of the case before it, the words submit and raise were virtually synonymous and that the new s114(2) of the ERA, other than introducing the reasonable steps requirement, did not appear to add greatly to the previous legislation. 3 There have been no subsequent cases which suggest any contexts in which the two words may not be synonymous. The 90 day time limit within which an employee must raise a personal grievance applies unless the employer consents to the personal grievance being raised after the expiration of that period. If an employee has failed to raise the personal grievance in time, and the employer does not consent to late raising of the grievance, the employee may apply to the Employment Relations Authority under s114(3) of the ERA for leave to raise the personal grievance outside the 90 day time period, commonly referred to as an application for leave to raise a personal grievance out of time. Certain statutory tests must be met before the Authority can consider exercising its discretion to allow such an application. Those tests are the subject of the remainder of this editorial. 1 The term personal grievance is defined in s103 of the ERA. 2 Ruebe-Donaldson v Sky Network Television Limited unreported, Travis J, 13 August 2004, AC 44/04. 3 Given those comments it seems likely that case law concerning the meaning of the word submit under s33 of the ECA will still provide useful guidance.

3 III LEAVE TO RAISE A GRIEVANCE OUT OF TIME: EXCEPTIONAL CIRCUMSTANCES AND OVERALL JUSTICE A The Relevant Statutory Provisions The Authority must apply sections 114(4) and 115 of the ERA when considering an application for leave to raise a personal grievance out of time: 114 Raising personal grievance (4) On an application under subsection (3), the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks fit, if the Authority (a) is satisfied that the delay in raising the personal grievance was occasioned by exceptional circumstances (which may include any 1 or more of the circumstances set out in s115); and (b) considers it just to do so. 115 Further provision regarding exceptional circumstances under section 114 For the purposes of s114(4)(a), exceptional circumstances include (a) where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified in section 114(1); or (b) where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or (c) where the employee s employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or (d) where the employer has failed to comply with the obligation under section 120(1) to provide a statement of reasons for dismissal. B The First Step: s114(4)(a) There are exceptional circumstances occasioning the delay The steps which the Authority must look at under s114(4)(a) and (b) of the ERA are virtually identical to those which were contained in s33(4)(a) and (b) of the ECA. The Authority must first consider, under s114(4)(a), whether exceptional circumstances exist and whether those circumstances occasioned the delay in raising the personal grievance. That consideration has been referred to by the Court of Appeal as a twofold test : 4 An inquiry under s33(4) [of the ECA] calls for an explanation for the failure to submit the personal grievance within the 90 days and the identification of 4 Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70, 77. That comment has subsequently been endorsed by the Employment Court in the context of the ERA in its only two decisions under s114(4) of the ERA (see below for citations).

4 particular circumstances which fairly satisfy the twofold test, namely that they constitute exceptional circumstances and that they occasioned the delay in submitting the personal grievance within time. The Court of Appeal took the view that the exceptional circumstances test under s33(4) of the ECA was not an easy one to satisfy. It noted in Wilkins & Field Ltd v Fortune that, in the context of s33(4) of the ECA, exceptional was a limiting adjective. 5 The Court stated that exceptional circumstances were circumstances which were unusual, outside the common run, perhaps something more than special and less than extraordinary. 6 The Court of Appeal commented to similar effect in GFW Agri-Products v Gibson that [t]he Legislature ha[d] set the burden at the high level by requiring that circumstances be exceptional. The Court went on to warn that that requirement must be given proper application. 7 Whether comments made under s33 of the ECA apply equally to s114 of the ERA depends largely on whether Parliament altered the applicable threshold by the addition of s115 of the ERA. The ECA contained no definition or examples of what constituted exceptional circumstances under s33(4)(a) of that Act. By contrast, s115 of the ERA gives four specific examples of situations that constitute exceptional circumstances for the purposes of the test in s114(4)(a). It is clear from the wording of ss114(4)(a) and 115 of the ERA that s115 is not an exhaustive list of the circumstances which may be considered exceptional under s114(4(a). The Employment Court recognised that in Telecom New Zealand v Morgan, a case concerning s115(a) of the ERA: 8 Section 115 does not elaborate the only exceptional circumstances in which leave may be granted. It is exemplary and informs the meaning of exceptional circumstances in s114 allowing for the existence of others than the four exceptional circumstances there set out. In the same case, the Court stated its view of the effect of the changes contained in the ERA: 9 I consider Parliament did not intend to alter, by relaxing, the tests for extending the limitation period when it enacted ss114 and 115 in Had it so intended, it is logical that it would have changed what is now s114 but it did not do so. Instead it sought to exemplify, but not limit, situations that would amount to exceptional circumstances, the first of the two tests applicable under s114(4). Focussing on the first example of exceptional circumstances set out under s115(a) and upon which [the defendant s] case relies, Parliament has established a high threshold for employees seeking to rely upon the effects on them of their dismissals or other matters giving rise to grievances. If anything, it is arguable that Parliament has made the exceptional circumstances test a more difficult one to satisfy, at least where circumstances such as those here are relied on. In addition to requiring the existence of exceptional circumstances, the twofold test in s114(4)(a) of the ERA also requires that those circumstances caused the delay in raising the personal grievance. If the real cause of the delay was something other 5 Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70, Wilkins & Field Ltd v Fortune [1998] 2 ERNZ 70, GFW Agri-Products v Gibson [1995] 2 ERNZ 323, Telecom New Zealand Limited v Morgan unreported, Colgan J, 12 July 2004, AC 38/04, para Telecom New Zealand Limited v Morgan unreported, Colgan J, 12 July 2004, AC 38/04, para 22.

5 than the exceptional circumstances, leave to raise the grievance out of time will not be granted. In Jopson v Eurest New Zealand, 10 the Authority had no difficulty whatsoever in finding that personal difficulties relating to two failed pregnancies amounted to exceptional circumstances within the meaning of s114(4)(a) of the ERA. However, the Authority found that those circumstances were not the cause of the delay in raising the personal grievance: the real reason for the delay was the applicant s decision to await the outcome of any Police investigation into the events that gave rise to her dismissal before taking advice on raising a grievance. A similar situation arose in Williams v Burns 11 where the Authority found that although exceptional circumstances of the type referred to in s115(a) may have existed, those circumstances did not cause the delay in raising the grievance, rather the applicant had decided not to pursue a personal grievance in case it affected her new employment and then changed her mind when she was encouraged to do so by a member of the police force. Even apparently strong cases may not satisfy the causation aspect of the test in s114(4)(a) upon closer inspection. In Kingi v Statistics New Zealand 12 the Authority considered that on its face the nature and extent of Ms Kingi s [stress-related depressive] illness strongly support[ed] a conclusion that exceptional circumstances existed, and occasioned the delay in raising her personal grievances. However, because the applicant s mother, who was a barrister and solicitor, actively represented the applicant throughout the relevant period, the Authority was ultimately not satisfied that the delay in raising the personal grievance was occasioned by the applicant s illness, and declined the application for leave. 1 Section 115(a): trauma causing inability to properly consider raising grievance Section 115(a) of the ERA provides that exceptional circumstances include where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified in section 114(1). The 2004 case of Telecom New Zealand v Morgan has been the only Employment Court decision under this section. It provided a number of useful guidelines for those wishing to rely on the matters set out in s115(a). In Telecom New Zealand v Morgan, the defendant began suffering clinical symptoms of depression as a consequence of the distress to him of his impending redundancy. The Authority found that the defendant s continuing poor health was an exceptional circumstance which caused his failure to correctly identify the date of his dismissal and therefore the failure to raise his grievance within time. The Authority considered it just to grant leave to raise the grievance out of time. In its determination on the de novo challenge brought by the plaintiff, the Employment Court commented on the elements needed to meet the exemplar exceptional circumstances test set out in s115(a) of the ERA: Unreported, J Scott, 6 July 2004, AA 228/ Unreported, J Crichton, 20 January 2005, CA 3/ Unreported, R Monaghan, 15 April 2005, AA 132/ Telecom New Zealand Limited v Morgan unreported, Colgan J, 12 July 2004, AC 38/04, paras 23, 24.

6 1. The consequences of the dismissal or other matter giving rise to the grievance had to be severe. That was illustrated by the use of the phrase has been so affected or traumatised in s115(a). Although being affected could encompass a range of effects from relatively minor to very serious, the accompanying use of the derivative of trauma connoted very substantial injury. In a physical sense, that meant shock following a physical wound or injury characterised by a drop in body temperature and mental confusion. In the more psychological sense, it connoted emotional shock following a stressful event, sometimes leading to long-term neurosis. 2. The effects of the dismissal or other matter giving rise to the grievance must have caused the employee to be unable to properly consider raising the grievance. It was not the inability to raise the grievance that Parliament had said may contribute to an exceptional circumstance. It was the inability to properly consider raising the grievance that was required to be established by an applicant for leave relying on s115(a). (Emphasis taken directly from judgment). 3. The incapacity arising from the grievance was required to exist for the whole of the 90 day period and not for only part of it. That was indicated by use of the phrase within the period specified. The Court indicated that it would be difficult to satisfy the test in s115(a): 14 So interpreted, the statutory test for this exceptional circumstance requires a high standard of proof to be met by an applicant. Although it is not impossible to conceive of cases where the consequences of employment events giving rise to a grievance would be so serious and the resulting incapacity to properly consider raising the grievance will last for more than three months, most cases are unlikely to meet that test. The Court considered that although the defendant s dismissal had undoubtedly had some psychological effect on him, he was not unable to properly consider raising his grievance and certainly not for much, let alone the whole of, the 90 day period. In reaching that conclusion the Court relied on the fact that the defendant knew of his right to bring a grievance and, during the 90 days, he had been capable of seeking legal advice, negotiating an earlier finish date with the plaintiff, making arrangements to access an employment assistance agency, undertaking an exit interview with the plaintiff, and attending a job interview. The Court also took note of the fact that while the 90 day period was running, the defendant s medical checkups were reduced back to the frequency they had been at prior to the events which gave rise to his grievance. The Authority cases which have been decided under s115(a) of the ERA illustrate that the effects or trauma resulting from the matter which gave rise to the personal grievance may be either physical or psychological, but that clear evidence of the trauma must be given: mere assertions of trauma without more will not be sufficient to justify a finding of exceptional circumstances under s115(a). In Tang v Willow Tree Produce 15 the applicant suffered head injuries after an assault by a co-worker and wished to bring a personal grievance against her employer in respect of that incident. There was clear medical evidence that the physical and psychological effects of the incident continued throughout the 90 day period and caused the delay in raising the 14 Telecom New Zealand Limited v Morgan unreported, Colgan J, 12 July 2004, AC 38/04, para Unreported, L Robinson, 19 May 2005, AA 187/05.

7 grievance. Similarly, in Joseph v Juralco Aluminium Building Products, 16 the Authority accepted evidence provided by the applicant that she suffered depression due to the effects of the matter which gave rise to the personal grievance and did not become well enough to consider raising a grievance until after the 90 day period had elapsed. In both cases the Authority considered that exceptional circumstances as provided in s115(a) existed and granted leave to raise the grievances out of time. By contrast, the applicant in Sharp v University of Canterbury 17 submitted no evidence of the alleged trauma and the Authority declined his application to raise a personal grievance out of time. 2 Section 115(b): failure of reasonable arrangements with agent Section 115(b) of the ERA provides the second example of exceptional circumstances under s114(4)(a): where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time. The second Employment Court case concerning ss114 and 115 of the ERA, McMillan v Waikanae Holdings, 18 was decided under s115(b). In that case, the plaintiff wished to raise a grievance of unjustified constructive dismissal. He had resigned from his employment with the defendant and sought legal advice 49 days later. The solicitor he consulted agreed to look into the matter but did not do so. The plaintiff phoned the solicitor a few times to check on progress but was unable to speak to him and did not leave messages. On the day on which the 90 day period expired, the solicitor who was originally consulted passed the matter on to a staff solicitor. The new solicitor contacted the plaintiff and a meeting occurred the following day in which the plaintiff gave advice for the grievance to be pursued. However, almost another month passed before the defendant was served with a statement of problem and became aware by that means that the plaintiff wished to raise a personal grievance. The Employment Court discussed s115(b) of the ERA. It quoted the comments in Telecom New Zealand v Morgan that Parliament had established a high threshold for those wishing to rely on the kind of matters set out in s115(a), and that Parliament had arguably made the exceptional circumstances test a more difficult one to satisfy in those circumstances, and stated that the same may be said for the wording of s115(b). The Court also clarified the implications of s115(b) for those wishing to rely on a third party s failure to raise a grievance on their behalf: 19 The requirement now is for the employee to make reasonable arrangements to have the grievance raised on his or her behalf. If the employee has not made such reasonable arrangements to have the grievance raised this will not constitute exceptional circumstances for the purposes of s115(b). It is only when the employee has made reasonable arrangements and the agent in turn has unreasonably failed to ensure that the grievance was raised within the timeframe, that the provisions of s115(b) apply. 16 Unreported, W Gardiner, 7 November 2002, AA 326/ Unreported, P Montgomery 20 December 2004, CA 150/ McMillan v Waikanae Holdings (Gisborne) Ltd t/a McCannics unreported, Travis J, 27 May 2005, AC 27/ McMillan v Waikanae Holdings (Gisborne) Ltd t/a McCannics unreported, Travis J, 27 May 2005, AC 27/05, para 25.

8 The Court decided that the plaintiff had failed to make reasonable arrangements to have the grievance raised on his behalf: he had taken insufficient steps to establish whether he had a grievance and had not given instructions to anyone to actually raise it within the time limit. By the time he gave such instructions the 90 day period had expired. The one or two attempts the plaintiff made to follow up the matter with the solicitor he originally consulted, without leaving messages, did not constitute reasonable arrangements because he had not instructed that solicitor to raise the grievance. The Court commented that the plaintiff was aware of the provision in his employment agreement alerting him to the existence of a time limit and that that undermined his argument that the arrangements he made were reasonable. The plaintiff failed to establish the existence of exceptional circumstances under s115(b) of the ERA. The most common circumstance in which applications to the Authority relying on s115(b) are made, and granted, is where the employee gave clear instructions within the 90 day period to an agent such as a lawyer or union official to pursue a personal grievance on his or her behalf, and the agent then failed to do so. 20 Those circumstances sit squarely within s115(b) and perhaps for that reason the cases which involve that situation contain little discussion of what amounts to reasonable arrangements by the employee or an unreasonable failure by the agent to raise the grievance within time. It is clear that the section may apply whether the failure by the agent is due to technical error (such as miscalculation of the last day for raising a grievance) or incompetence. 21 In some circumstances the Authority may consider that an employee has made reasonable arrangements to have a grievance raised on their behalf even where they did not explicitly instruct the agent to so. In Murray v BP Oil New Zealand Limited22 the applicant telephoned the Employment Dispute Services ( EDS ) and asked for assistance in regard to an employment relationship problem. EDS did not receive any specific instructions from the applicant but proceeded internally on the basis that a personal grievance existed. The Authority considered that by leaving it to EDS to represent her, and given the general role of the EDS as a body which assisted in the resolution of personal grievances, the applicant had made reasonable arrangements for a grievance to be raised on her behalf despite the apparent lack of specific instructions. Where an employee has asked someone for advice concerning an employment matter but has not made any arrangements for that person to pursue a personal grievance on his or her behalf, s115(b) will not apply.23 Nor will the section apply in cases where the circumstances relied upon do not involve any actual failure on the part of the alleged agent. For example, s115(b) did not apply in the case of Currie v Leo Leonard Motors Limited 24 where the applicant attempted to arrange an appointment with a solicitor regarding his employment matter within the 90 day period, but due to 20 See for example Bolton v Telecom New Zealand Limited unreported, Y Oldfield, AA 118/01; Lilley v Braided River Holdings Limited unreported, P Stapp, 31 October 2001, CA 59/01; McIntyre v Thames Timber Limited unreported, Y Oldfield, 20 May 2003, AA 144/03; Crompton v Pet Vets Limited unreported, K Raureti, 19 September 2003, AA 199A/03; and Te Moana v GDC Communications Limited unreported, P Stapp, 2 October 2003, WA 144/ Harris v Stuart and Judith Horne t/a Alpha Karts unreported, D King, 23 June 2003, AA 191/ Unreported, PR Stapp, 10 April 2003, WA 56/ Moeara v The Chief Executive, Child, Youth and Family Services unreported, A Dumbleton, 13 July 2005, AA 263/ Unreported, P Cheyne, 8 October 2002, CA 97/02.

9 the solicitor s unavailability did not successfully obtain advice until the period had expired. The Authority commented that that situation involved a simple failure to act in time on the applicant s part and was not the kind of situation envisaged by s115(b). 3 Section 115(c): no explanation of problem resolution procedure The third example of exceptional circumstances is set out in s115(c) of the ERA: where the employee s employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be. Sections 54 and 65 of the ERA require both collective and individual employment agreements to contain a plain language explanation of the services available for the resolution of employment relationship problems, including a reference to the 90 day period within which a personal grievance must be raised. There have been no Court cases under s115(c) of the ERA. Section 115(c) applies where the employee concerned was not provided with a written employment agreement and was therefore unaware of the 90 day time limit within which they were required to raise their personal grievance. 25 However, in the situation where there is no employment agreement, or the applicable employment agreement does not contain the required explanation, but the applicant is nevertheless aware of the 90 day limit, the applicant may not be able to rely on the exceptional circumstances set out in s115(c). In Clarke v Tempz Personnel 26 the applicant was not provided with an employment agreement during his time of permanent employment with the respondent. The Authority declined the applicant s application under sections 114 and 115(c) for leave to raise a personal grievance out of time. The Authority said that, for two reasons, the applicant could not credibly claim to have been unaware of the 90 day time limit for raising a personal grievance. Firstly, part of the applicant s job was to recruit temporary employees for the respondent s business and that involved taking them through an employment agreement and advising them of the process to be followed should they wish to pursue a personal grievance against the respondent. Secondly, the applicant accepted temporary employment with the respondent within 90 days after his permanent employment ended. When he accepted the temporary employment he signed an employment agreement which contained an explanation of the procedure for resolving employment relationship problems with specific reference to the 90 day limit. In Sandifier v Plumbers Gasfitters & Drainlayers Board NZ 27 the Authority came to a similar conclusion because, although the applicable employment agreement did not contain the required explanation, a proposed replacement agreement which the applicant had clearly examined (and parts of which he had strongly opposed) did contain a clause setting out an explanation of problem resolution procedure. 4 Section 115(d): failure to provide statement of reasons for dismissal The fourth example of exceptional circumstances is set out in s115(d) of the ERA: where the employer has failed to comply with the obligation under section 120(1) to 25 See for example Jackman v Certus Consulting Limited unreported, P Stapp, 24 January 2003, WA 9/03; Mudgway v Fresh Harvest Produce unreported, 22 September 2003, AA 286/03; and Gupta v India House Ltd unreported, D King, 13 October 2003, AA 306/ Unreported, P Montgomery, 11 August 2004, CA 91/ Unreported, R Monaghan, 15 April 2004, AA 125/04.

10 provide a statement of reasons for dismissal. This example appears relatively straight forward. It relates to s120 of the ERA which requires an employer to provide a statement in writing of the reasons for an employee s dismissal if requested to do so by that employee. To date, there do not seem to have been any applications for leave to raise a personal grievance out of time which have relied on s115(d). 5 Other exceptional circumstances As mentioned above, section 115 of the ERA does not provide an exhaustive list of what may constitute exceptional circumstances for the purposes of s114(4)(a) of the ERA. A number of applications for leave to raise personal grievances out of time under the ERA have involved circumstances other than those set out in s115 of the ERA. In Bruce v Rio Beverages, 28 the delay in raising the personal grievance was caused by the applicant s mistaken belief that he could not raise a grievance until after related criminal charges against him had been dealt with. The Authority relied on the case of Wilkins & Field Ltd v Fortune in which the Employment Court had commented that [i]t is not exceptional for a party in litigation to believe mistakenly that he or she need take no further step at that time and found that the applicant s mistaken belief did not amount to an exceptional circumstance. In the same way, a lack of knowledge about employment rights or the 90 day limit does not in itself constitute an exceptional circumstance. That has been confirmed in a number of Authority cases decided under the ERA, 29 in reliance on the case of Muggeridge v Miden Construction Co. 30 C The Second Step: s114(4)(b) The Authority considers it just to grant leave Once it is satisfied that exceptional circumstances exist, and occasioned the delay in raising the grievance, the Authority must then consider whether it would be just to grant leave to raise the personal grievance out of time. That second step is contained in s114(4)(b) of the ERA. In deciding whether it would be just to grant leave the Authority will look at all relevant circumstances. Those circumstances may include the length of the delay, the explanation for that delay, and the prejudice that would be caused to each party by allowing or not allowing the application. Many of the Authority cases where leave has been granted to raise a personal grievance out of time contain little or no discussion concerning the justice of allowing an application. It appears that where the delay has been relatively short and the explanation for that delay is clearly adequate, the Authority does not have difficulty concluding that it would be just to grant leave. The Employment Court has commented that in certain cases it will be appropriate to investigate the merits of the case to some degree in order to decide whether it will be 28 Unreported, Y Oldfield, 16 April 2002, AA 105/ See for example Walker v The Heritage Hotel Auckland Limited unreported, YS Oldfield, 6 June 2003, AA 168/03; Health Waikato v Turner unreported, M Urlich, 29 March 2004, AA 105/04; and Jopson v Eurest New Zealand Ltd unreported, J Scott, 6 July 2004, AA 228/ [1992] 1 ERNZ 232.

11 just to grant leave. If a personal grievance claim clearly has a limited chance of success, it will probably be harder to convince the Authority that it would be just to grant leave to raise the personal grievance out of time: 31 I consider this was an appropriate case for the Authority to have investigated the merits, as it apparently did, having properly preserved the defendant employer s right to claim that it had not consented to the grievance being raised out of time. The reason for this course is the final requirement in s114(4) of the Employment Relations Act 2000 for the granting of leave. The Authority, after giving the employer the opportunity to be heard, may grant leave subject to any conditions, if it is satisfied that the delay in raising the grievance was occasioned by exceptional circumstances and considers it just to do so (s114(4)(b)). In many cases it will be difficult if not impossible to consider whether it is just to do so, once exceptional circumstances are established, without delving to some degree, into the merits of the case. That is especially so in a case like the present where it was not even clear whether the plaintiff was claiming that his resignation amounted to an actual or a constructive dismissal. The Authority undertook a similar consideration of the merits in Jackson v The Farmers Trading Company Limited 32 and found that it would not be just to grant leave in circumstances where, even if the applicant was successful in his personal grievance, any remedies were likely to be reduced by 100% because of the extent to which his actions contributed towards the situation which gave rise to the personal grievance. IV CONCLUSION Obtaining leave to raise a personal grievance out of time is no easy task. The Court and the Authority have made it clear that the threshold test remains high under ss114(4) and 115 of the ERA. An employee must still show the existence of exceptional circumstances which occasioned the delay in raising the grievance and the addition of examples of exceptional circumstances in s115 has not changed the substance of the test. If the exceptional circumstances test is satisfied, the Authority must then be convinced that it is just to grant leave, a question which involves consideration of all relevant factors including, in some situations, an evaluation of the merits of the case. 31 McMillan v Waikanae Holdings (Gisborne) Ltd t/a McCannics unreported, Travis J, 27 May 2005, AC 27/05, para Unreported, D Asher, 24 March 2003, WA 45/03.