The legal process for dealing with employment problems
Taking your case to the Employment Relations Authority
What is the Employment Relations Authority?
The Employment Relations Authority investigates and decides employment relationship problems. Its role is to establish the facts and make a decision based on the substantial merits of the case, rather than based on legal technicalities. In carrying out its role the Authority follows the processes of natural justice.
The Authority’s role includes promoting good faith behaviour, supporting successful employment relationships, and generally furthering the objectives of the Employment Relations Act.
How do I take a problem to the Employment Relations Authority?
Either you or your employer can begin the process of going to the Employment Relations Authority. You need to fill out a simple form called a “Statement of problem”, explaining in plain language what the problem is and how you’d like it resolved. You lodge your application by sending the completed form to the Authority, together with the required fee of $71.56.
The Authority is based in Auckland, Wellington and Christchurch, but its members can travel to the place where the problem has arisen.
What will the Employment Relations Authority do after I apply to it?
The Authority will send a copy of your “Statement of problem” to your employer (called the “respondent”). Your employer will be asked to provide a statement in reply within 14 days, giving their view of the problem in plain language, their view of the facts, and any steps they’ve taken to resolve the problem, such as mediation.
The Authority can contact either side to clarify any points made in their statements. It may also hold a pre-investigation conference, by telephone or some other way, to resolve some issues or discuss procedures for investigating the problem.
The case will then usually go to an investigation meeting (see below, “What happens at an investigation meeting?”).
You and your employer can also make a joint request to the Authority for it to make a recommendation about your dispute. The Authority’s recommendation will then become a final and legally binding decision on a date agreed to by you and your employer, unless before that date one or both of you objects to the Authority about the recommendation.
Note: For many employment disputes, the Employment Relations Authority must first look at whether efforts have been made to resolve the case by mediation, and must direct the two sides to use mediation if it thinks this is appropriate (see “Mediation” in this section). However, that emphasis on mediation doesn’t apply to claims about breaches of workers’ minimum rights in areas such as pay, holidays/leave, rest/meal breaks, and breastfeeding facilities.
What happens at an investigation meeting?
Investigation meetings are dealt with by one member of the Employment Relations Authority sitting alone, and they control the procedure at the meeting.
In any investigation meeting, the Authority can:
- summons any person, such as a witness, to appear before it
- require any relevant books, papers or other documents to be produced
- take evidence on oath or by affirmation
- make a decision on the matter if either side fails to attend without a good reason.
At the end of the meeting, after having heard all the facts, the Authority member is usually required to give their decision orally, or to give an oral indication of their preliminary findings. If they give an oral decision at the meeting, they must usually give a written decision within one month. If they give only an oral indication of their preliminary findings, they must usually give a written decision within three months.
The Authority can prohibit anyone publishing the names of the people involved in the case or publishing the evidence that was given.
Note: The decision of the Employment Relations Authority is enforceable in the same way as a court order.
Do I need a lawyer to represent me?
Not necessarily. You can choose to represent yourself or to be represented by someone else. Your representative doesn’t have to be a lawyer – it could also be a union representative or a bargaining agent.
Note: Legal aid may be available for cases before the Employment Relations Authority (see the chapter “Legal aid”).
Can I challenge the Authority’s decision if I’m unhappy with it?
If either side is unhappy with the Authority’s written decision, they can challenge it by applying, within 28 days, to have the case heard by the Employment Court (see “Going to the Employment Court: Appeals and other special cases” in this section).
You can challenge either:
- the whole of the Authority’s written decision, by applying to have the Employment Court conduct a full hearing of the whole matter (called a hearing “de novo”), or
- just a part of the written decision – for example a mistake you believe the Authority made in interpreting a particular section of the Employment Relations Act.