The recent Employment Court decision involving Melville High School makes harrowing reading due to the factual circumstances established by the plaintiff’s, Kathleen and Ronald Cronin-Lampe. It also traverses some of the time limitations that apply in relation to bringing claims (and some of the exceptions).
Melville High School suffered an extraordinary number of traumatic events in its student body, staff and wider community over the period of time that Mr and Mrs Cronin-Lampe were employed. There were approximately 32 deaths in the School community, many by suicide, some by other unexpected tragedy, and some from illness. Mr and Mrs Cronin-Lampe were school counsellors and were actively involved in all these tragedies, both in the immediate aftermath and, usually, in relation to ongoing issues. They were also heavily involved in assisting students and staff in relation to a wide range of other very challenging situations.
Mr and Mrs Cronin-Lampe were diagnosed with post-traumatic stress disorder (PTSD). They claimed that they were so affected by their PTSD that they were in effect paralysed during their final year at the School and were effected to such an extent that they were unable to properly consider raising their claims within the 90-day time limit to bring a personal grievance claim in the employment jurisdiction. Because of this, they claimed that there were exceptional circumstances and that it would be just to grant leave to bring their claims out of time.
Generally, the reason we have a limitation law is to protect people against “stale claims”. The law encourages claimants to bring their claim in a timely fashion by setting out the maximum time they can wait before filing a claim.
The Employment Relations Act sets a short 90 day period for an employee to notify their employer of a personal grievance. If the 90 day time period is missed then the employee must make an application for leave to the Employment Relations Authority to raise the personal grievance out of time. This will only be granted where exceptional circumstances are established. 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.
The School argued that as Mr and Mrs Cronin-Lampe had consulted an employment lawyer at one point and had sought professional assistance from a clinical-psychologist and that they were able to consider raising a personal grievance but elected not to do so. The Judge disagreed, and said that Mr and Mrs Cronin-Lampe activities must be viewed in the overall context of their being unaware of their pre-existing PTSD and that they were increasingly unable to analyse their complex circumstances with a view to raising grievances.
Judge Corkill has granted leave to Mr and Mrs Cronin-Lampe to bring their claims out of time. The parties have been directed to mediation. If that is not successful, Judge Corkill will give his decision on the merits of Mr and Mrs Cronin-Lampe’s claims.
Mr and Mrs Cronin-Lampe’s journey to this point has been arduous. Besides suffering PTSD they have had to have their claims extensively litigated in the Employment Relations Authority, the Employment Court, and the Court of Appeal; and now back before Judge Corkill in the Employment Court.
Recently, in June this year, the Employment Relations Act was amended to allow employees more time to raise a personal grievance in relation to sexual harassment from 90 days to 12 months. Labour, National, ACT, and the Greens all supported the passing of the bill into law.
The private members Bill was originally sponsored by Labour MP Marja Lubeck. She said "This bill will ensure employees have time to process what has happened to them before deciding to come forward and proceed in a manner which best suits them — and their family". "Coming forward to report sexual harassment can be difficult, and it is common for victims of sexual harassment to wait a long time before coming forward. "Everyone has the right to feel safe at work, and it is important employees have time to consider what has occurred and feel safe to raise it with others."
The same arguments could be made for Mr and Mrs Cronin-Lampe’s case. Sometimes the circumstances are traumatic. Sometimes physical or mental injury can take a while to manifest. Sometimes it simply is more important to focus on regaining one’s health, or establishing new employment, than immediately considering redress. It may be time to revisit the general limitation of 90 days on bringing a personal grievance claim. Read more....