Going to the Employment Court
You have the right to challenge a written decision of the Employment Relations Authority (ERA) if you are unhappy with it.
In some cases, the ERA may refer your case directly to the Employment Court without it being investigated by the ERA. This might be when:
- your case involves an important question of law (eg it’s the first case to interpret new legislation)
- the nature and urgency of the case means that it’s in the public interest for the Employment Court to hear it first
- the Court is already hearing a case between the same parties and that involves the same or similar matters.
You may not challenge the procedure that the ERA followed. Procedure is the way in which the ERA operates and does not include the outcomes it reaches.
Challenging an ERA decision
The Employment Court (external link) website can provide you guidance on how to file a challenge, the hearing process, and for access to forms and fees.
You must apply to the Employment Court within 28 days after the date of the ERA’s written decision.
You must state whether you are challenging the whole of the ERA’s decision or part of the ERA’s decision (and if so which part).
There are two types of challenges:
- You can ask the Employment Court to review the ERA’s decision. The Employment Court will work through the reasoning of the ERA and decide whether it was correct.
- You can ask the Employment Court to consider your case again. This is known as a ‘de novo’ hearing. The Employment Court will gather all of the facts itself and make a new decision without being influenced by the ERA’s decision.
Representation in the Employment Court
Although you may represent yourself, it is strongly recommended that you seek legal advice and representation when going to the Employment Court.
A lawyer, union or employment advocate can be very helpful with gathering the important facts and expressing complex legal arguments, as well as dealing with the formalities of the court process. A professional may also be experienced in the witness examination process.
Professional representation can be expensive. If you seek professional representation you need to be very clear on your brief to them, including:
- the work you want them to do
- the objective you are trying to achieve
- how much you are prepared to pay
- getting an estimate of likely costs upfront.
If you’re successful in the ERA the other side may contribute to your legal fees through an award of costs.
You might be eligible for legal aid (external link) if you meet certain criteria.
The Employment Court website lists the different types of fees required when going to the Employment Court.
In addition to these fees, if you’re unsuccessful, you may be required to cover some of the legal costs of the successful party. The Employment Court costs are generally much higher than those awarded in the ERA. This is something you should take into account before deciding to go to the Employment Court.
The Employment Court has powers to award a wide range of remedies.