The legal process for dealing with employment problems
Taking your case to the Employment Relations Authority
What is the Employment Relations Authority?
The ERA 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 ERA 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 ERA. 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 ERA, together with the required fee of $71.56.
The ERA 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 ERA 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 ERA 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).
You and your employer can also make a joint request to the ERA for it to make a recommendation about your dispute. The ERAs 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 ERA about the recommendation.
Note: For many employment disputes, the ERA 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”). 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 ERA sitting alone, and they control the procedure at the meeting. It is less formal than an ordinary court hearing, and the rules about what and how evidence can be given are less strict.
In any investigation meeting, the ERA can:
- require (“summons”) any person, such as a witness, to appear before it
- require any relevant books, papers or other documents to be produced
- hear witnesses
- 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 ERA member is usually required to give their decision orally, or to give an oral indication of their initial (“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 ERA 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 at an investigation meeting?
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 ERA (see: “Family/civil Legal Aid”).
What can the Employment Relations Authority do?
Getting you back in your old job (“reinstatement”) is the main remedy the Employment Relations Authority is likely to use, but that will not always be possible. Other potential remedies are:
- paying you for lost wages (“reimbursement”)
- compensation, including for emotional stress (called “humiliation, loss of dignity and injury to feelings”)
- compensation for loss of any benefit (monetary or not)
- recommendations on workplace practices
- recommendations to the employer on steps to take if you were sexually or racially harassed or treated unfairly because you were affected by family violence – for example, transferring the harasser or taking disciplinary action against them.
If the ERA finds that your behaviour (“conduct”) contributed to the situation that led to your grievance, they can reduce the amount of any compensation awarded to you in a way that reflects your level of contribution.
Can I challenge the Authority’s decision if I’m unhappy with it?
If either side is unhappy with the ERA’s written decision, they can challenge it by applying, within 28 days, to have the case heard by the Employment Court.
You can challenge either:
- the whole of the 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 ERA made in interpreting a particular section of the Employment Relations Act.