The employment relationship can be difficult to manage and unfortunately problems do arise.
Where an employee and an employer cannot resolve employment relations problems or conflict, the Employment Relations Authority (the Authority) will play an unbiased role in resolving the issue based on facts and the merits of each case. The Authority operates with the powers provided by the Employment Relations Act 2000.
Involving the Authority in a breakdown in the employment relationship can be done by either an employer or an employee. An employee in a dispute with their employer over something like unpaid wages can contact the Authority. Likewise, an employer who feels the employee is not complying with the terms of an employment agreement can also contact the Authority.
Steps required before involving the Employment Relations Authority
The first course of action in resolving disputes is always to try and solve the issue between the two parties. Employers should reach out to employees to raise concerns and likewise, employees should raise their concerns with the employer to resolve disputes before they escalate. Following the failure of the two parties to resolve a dispute, mediation is the next step whereby an independent mediator will sit with both parties to try and resolve the issue. As a government agency, the Ministry of Business, Innovation and Employment (MBIE), offers a free mediation service.
Where both of these efforts fail and the relationship has completely broken down, the Authority will make a determination after hearing both sides of the story. This is a formal process and can take months to resolve.
What is the process in the Employment Relations Authority?
Following the failure of mediation to resolve the employment dispute, either party is entitled to lodge an application with the Authority. A copy of this application will also be sent to the respondent.
Lodging an application in the Employment Relations Authority
The first step is to lodge an application with the Authority. In this step, there are certain fields of information which need to be included in the application to the Authority, namely:
- who the applicant is having the problem with, this party will then be known as the respondent
- a plain language description of the problem
- a statement of the facts which have caused the problem
- indication of how the applicant wishes to have the problem resolved
- attached copies of relevant documents
- an explanation of what has already taken place to try and resolve the matter outside of the Authority, including any mediation already undertaken by the parties.
However, to start a case with the Authority, a statement of the problem must first be lodged using the Application to Authority form. In submitting documents to the Authority for your case, supporting documents are important and often take the form of employment agreements, payslips, any correspondence between the parties and any notes from meetings which have taken place. Applications are encouraged to be lodged online, but the opportunity to apply by post or hand also exists. Regardless of how the application is made, the Application to Authority form needs to be used and depending on the type of application, a fee is payable.
Once the process above has been completed and the respondent has been provided the application, the respondent has 14 days to provide a statement in reply. The statement in reply should include the respondent’s plain language description of the problem, their version of facts, and any steps already taken to resolve the issue.
Failure to file a statement in reply will lead the Authority to make a decision on how to progress the claim, whether it goes to mediation, a case management conference, or is set down for an investigation meeting.
Getting the issues straight
After an application is lodged, and before any investigation meeting takes place, the Authority will evaluate the issues which have been identified by either party. The Employment Relations Authority may seek clarification of any point raised by the employer or employee, ask for additional evidence from either party, or hold a case management conference.
A case management conference often takes place via phone and is meant to be brief and informal, involving both parties and a member from the Authority. A case management conference will enable the Authority to:
- understand clearly the issues under investigation
- consider all avenues to resolve the problem and determine the most appropriate option
- outline the timeframe for additional steps such as supply of supporting documents or witness statements
- obtain the details of those giving evidence
- explain the procedure for the investigation meeting
- determine an agreeable date, place, and time for the investigation meeting
Going through the Authority can be quite a lengthy process and both parties should be prepared for this to be the case. However, going through mediation prior to application will mean your case is heard quicker.
The investigation meeting
Investigation meetings are not as formal as Court hearings and often accommodate both parties as much as possible, with no party being disadvantaged. In these meetings, friends, whanau, or supporters are able to attend with either party and either party can present their own case or have a representative do it for them.
At the start of the meeting, the Authority member conducting the meeting will make introductions and outline how the meeting will work and the speaking order of those present. There will then be questions based on what was provided in the Statement of Problem and Statement in Reply. The Authority member may ask you to provide evidence at the meeting verbally, or by way of a written statement so employers and employees should be prepared to give evidence.
Similarly, every witness who has provided a statement will be required to attend. The witnesses can expect questions on their statement from the Authority member, and cross examination may also be used at the meeting. At the end of the meeting both parties have the option to sum up information which has been provided to the Authority, part of which may include providing any supporting legal principles.
With good reason, if the applicant does not make the meeting the matter may be dismissed. If the respondent fails to attend, the Authority may make a determination based on whatever information is available.
Deliberation and determination
The final step in the Authority’s process is the consideration of all the evidence and a determination being made. While a determination is issued in writing, it is becoming increasingly popular to give an oral indication of how the determination is likely to unfold at the end of the investigation meeting. These determinations are legally binding, provided to both parties and are made public.
There are a number of solutions (or remedies) to employment issues available to the Authority and which one is awarded will depend on the type of claim. For example, if an employee has been dismissed, an interim reinstatement may be ordered while the Authority continues deliberation. However, if it is feasible and if the employee wants to return to their job, a reinstatement could be ordered. Financial remedies can often take the form of reimbursement for an employee to cover lost wages following unjustified action by the employer or compensation for humiliation caused by the action of an employer.
In some cases, compliance may be ordered by the Authority with an employer being forced to pay wages and other pay owed to an employee. Other instances of compliance can be a settlement between the parties, or one party being ordered to pay a penalty under the Employment Relations Act 2000. The issue of costs and compensation will also be determined by the Authority, with either party, or both, being required to pay the total costs.
The Employment Relations Authority issues legally binding determinations and adheres to a process underpinned by legislation. So navigating through the Authority can be difficult for many employers.
Peninsula works with Kiwi business owners and employers, helping them with employment relations and workplace health and safety. Call our team on 0800215032 to find out how we can help you.
This article is for general information purposes only and does not constitute as business or legal advice and should not be relied upon as such. It does not take into consideration your specific business, industry or circumstances. You should seek legal or other professional advice regarding matters as they relate to you or your business. To the maximum extent permitted by law, Peninsula Group disclaim all liability for any errors or omissions contained in this information or any failure to update or correct this information. It is your responsibility to assess and verify the accuracy, completeness, and reliability of the information in this article.