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The legal process for dealing with employment problems

Mediation

For many employment issues the employment laws promote mediation as the main way of resolving problems. However, this doesn’t apply to disputes about workers’ minimum rights in areas such as pay, holidays/leave, rest/meal breaks, and breastfeeding facilities. A labour inspector can enforce these minimum rights in the Employment Relations Authority.

What is mediation?

Employment Relations Act 2000, ss 144, 145, 159, 159AA

Mediation can be a speedy, flexible, less formal and relatively inexpensive alternative to using the courts. It gives employees and employers a chance to talk about and solve their problems. A mediator helps the two sides discuss the problem, identify the issues, and try to come up with a solution that works. The mediator facilitates the discussion, but doesn’t decide the outcome unless the employer and employee ask them to.

Mediation is voluntary – it will only happen if both sides agree to do it. Mediation is also confidential.

Employment Relations Act 2000, s 147

There’s no set process for mediation, but the aim is to identify common ground and reach an agreed settlement. The process may involve a meeting between the two sides and their representatives, or mediation may happen over the telephone or by email.

You don’t necessarily need a lawyer to represent you at mediation – you could speak for yourself or bring a union representative or a bargaining agent. You can also bring a support person.

At mediation the possible outcomes are not limited like they are in a court case – for example, if you’ve been fired, you could negotiate a positive reference or the employer could offer you an apology.

It’s often helpful (whether or not you have a representative) to prepare a short statement to read at the mediation, detailing how you feel or how you were personally affected by the issue. This may help you to negotiate compensation for emotional stress (which is called “humiliation, loss of dignity and injury to feelings” in the Employment Relations Act).

Employment Relations Act 2000, s 147

Note: If you and your employer have a problem and both of you agree you would like it resolved quickly, a mediator can offer a fast-track mediation option. A short timeframe will be set, and if the problem isn’t resolved within that set time the mediator will make a final and binding decision.

How do I get access to mediation?

Employment Relations Act 2000, s 146

A free mediation service is available through the Employment Relations section of the Ministry of Business, Innovation & Employment (MBIE). You or your employer can access this service by phoning MBIE‘s contact centre on 0800 20 90 20.

You need to fill out an online form called a “Request for mediation”, where you set out the relevant facts in your own words. You should include all relevant documents such as a copy of your employment agreement, time and wage records, and any relevant letters, emails or texts.

Employment Relations Act 2000, ss 159, 188

In most cases, you and your employer must try to resolve your dispute through mediation before the Employment Relations Authority will hear your case.

Employment Relations Act 2000, ss 154, 155

Note: Employees and employers can choose to use a private mediator or arbitrator. However, any agreement that’s reached may not be enforceable in the Employment Relations Authority or Employment Court unless it is later signed off by a mediator from MBIE.

What happens if the two sides reach an agreement?

Employment Relations Act 2000, ss 149, 151

If your dispute is resolved using the mediation service provided by the Ministry of Business, Innovation & Employment, you and your employer can ask the mediator to sign the settlement. The signed settlement will then be final and binding and either side will be able to enforce it by applying to the Employment Relations Authority (see “Taking your case to the Employment Relations Authority” in this section).

Even if you reach an agreement with your employer outside of mediation, you can still get the terms of your agreement (called a “record of settlement”) signed off by a mediator, making it binding and able to be enforced in the Employment Relations Authority.

What happens if no agreement is reached?

Employment Relations Act 2000, ss 150, 151

If you and your employer can’t reach a mediated settlement, together you can ask the mediator to make a final and binding decision, or you can take the dispute to the Employment Relations Authority (see “Taking your case to the Employment Relations Authority” in this section).

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