All in a day's work

Employment lawyer Bridget Smith blogs on workplace and HR issues. Bridget is a senior associate at law firm Minter Ellison Rudd Watts.

All in a day's work: Good, great, or exceptional?

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Exceptional: New Zealand Olympian Nick Willis after the Men's 1500 metre final at the 2008 Beijing Olympics. Photo / Kenny Rodger
Exceptional: New Zealand Olympian Nick Willis after the Men's 1500 metre final at the 2008 Beijing Olympics. Photo / Kenny Rodger

The recent Commonwealth Games has illustrated the desire of many to be exceptional. Not just average, good or even great, but to be truly exceptional.

Employees are no different. Being exceptional as an employee can lead to benefits such as pay-rises, accelerated promotions or access to greater opportunities. It is also useful, particularly in the current climate, when employers have been looking at downsizing and other ways to cut costs.

If you are a truly exceptional employee, it is less likely that the looming spectre of redundancy will cast its shadow over your role, or if the shadow is so big that it looms over your entire organisation, your exceptional talents should make it easier to find a new role.

But beyond that, in employment law circles, the word 'exceptional' comes up most often in relation to 'exceptional circumstances' - the threshold for raising a personal grievance outside of the 90 day time period.

There are three main arguments that are most commonly raised in support of an application to raise a personal grievance out of time. The first is that the employee was so affected or traumatised by what had happened that they were unable to turn their mind to raising a personal grievance.

The second is that they considered they had already put their employer on notice about their issues, and believed that this was sufficient to constitute raising a personal grievance. The third is where there is a mistake or failing by a third party (such as legal counsel) to raise the grievance within the appropriate timeframe.

As you would expect given the term, the threshold for 'exceptional circumstances', is high.

In the recent Employment Relations Authority decision in Deichert v APN Holdings Limited, Ms Deichert argued that there were exceptional circumstances which ought to allow her to pursue a personal grievance outside of the statutory 90 day time period. In particular, that she was 'too traumatised to deal with the situation at the time'. Being traumatised to the extent that the employee is unable to consider raising a grievance is defined as an example of an exceptional circumstance, in section 115 of the Employment Relations Act 2000.

In making its decision, the Authority held that there were two assessments that needed to be made. The first was to show that there was trauma that had the effect of the employee being unable to properly consider raising the grievance for the whole of the 90 day period. The second was that the trauma must have been caused by the issue giving rise to the grievance (in most cases, the trauma must be associated with the dismissal).

The Authority gave weight to the fact that the medical evidence provided by Ms Deichert did not provide evidence of trauma during the 90 day period, let alone the whole of the 90 day period. Practically speaking, she did herself no favours by not seeing her doctor for almost 9 months after the termination of her employment.

Further, she commenced new employment three days after her employment with APN ended, and there were significant aspects of that, which were found to be at odds with the concept of her being 'so traumatised or affected' as to be unable to raise her personal grievance.

Those factors included the significant responsibilities associated with her new role, and the fact that she was able to manage those. Also, that there was evidence that she had been 'happy', 'excited' and appeared emotionally stable at her new role.

Ultimately, the Authority found that no exceptional circumstances existed and no leave was granted to pursue the personal grievance outside of the 90 day period. No good, no great, and certainly no exceptional.

The case reminds us that just as timing is important in the Commonwealth games, when you're striving for excellence, timing is equally important in raising a personal grievance.

Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts

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