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The legal process for dealing with employment problems

Taking your case to the Employment Relations Authority

What is the Employment Relations Authority?

Employment Relations Act 2000, s 157

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?

Employment Relations Act 2000, s 158

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?”).

Employment Relations Act 2000, s 173A

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.

Employment Relations Act 2000,

ss 159, 159AA

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?

Employment Relations Act 2000, ss 160, 165, 173, 174–174B, Schedule 2

Investigation meetings are dealt with by one member of the Employment Relations Authority 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 Authority 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 Authority 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 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 at an investigation meeting?

Employment Relations Act 2000, ss 165, 236, and Schedule 2, cl 2

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”.

What can the Employment Relations Authority do?

Employment Relations Act 2000, s 123

Reinstatement (putting you back in your old job) 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.

Employment Relations Act 2000, s 124

If the Authority 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?

Employment Relations Act 2000, s 179

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.

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.

Did this answer your question?

Resolving employment problems

Where to go for more support

Community Law

www.communitylaw. org.nz

Your local Community Law Centre can provide free initial legal advice if you’re facing problems at work.

Ministry of Business, Innovation & Employment

www.employment.govt.nz

The Employment Relations website of the Ministry of Business, Innovation & Employment has a range of information on personal grievances, mediation, the Employment Relations Authority and the Employment Court. This includes a pamphlet contained information on all those topics, called “Solving Problems at Work”.

Free phone 0800 20 90 20, for general enquiries about resolving employment problems.

Early Resolution Service

www.employment.govt.nz/resolving-problems/steps-to-resolve/early-resolution

The Early Resolution Service is a service offered by the Ministry of Business, Innovation & Employment. It is a free phone-based service to help employees and employers resolve workplace issues before it becomes too serious or needs a more formal process.

For more information on the Early Resolution Service, you can fill out the form on www.employment.govt.nz or call 0800 20 90 20.

Labour inspectors

Labour inspectors monitor and enforce minimum employment conditions. To refer a problem to a labour inspector, you contact the Ministry of Business, Innovation & Employment on: Free phone 0800 20 90 20

Employment Relations Authority

www.era.govt.nz

If you’re unable to settle at mediation, the next step is to file your claim in the Employment Relations Authority. For more information, visit the Authority’s website.

New Zealand Council of Trade Unions, Te Kauae Kaimahi

www.union.org.nz

Phone: (04) 385 1334
Email: info@nzctu.org.nz

Union members should contact their union for support in resolving problems at work.

Immigration New Zealand

www.immigration.govt.nz

Free phone: 0508 558 855
Phone: (09) 914 4100 (Auckland)
Phone: (04) 910 9915 (Wellington)

The Immigration New Zealand website has extensive information about the various types of visas and other immigration issues. There is also specific information on human trafficking and the help that’s available for people trapped in these situations.

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