How the ERA can help you
The Employment Relations Authority (ERA) is independent. It helps to resolve employment relationship problems by looking into the facts and making a decision based on the merits of the case, not on technicalities.
Any employer or employee who has an employment problem can apply to have their case heard at the ERA.
The ERA’s process is more formal than mediation but less formal than a court.
Try mediation first
You should try to sort out the problem in mediation first. If you haven’t tried using mediation to solve your problem, the ERA will usually recommend mediation. Even if you have tried mediation, the ERA may get you to try again if they believe it might solve the problem.
Representing yourself or getting representation
You can represent yourself when taking a claim to the ERA. You can fill out the required forms and prepare to explain the facts yourself at a meeting that the ERA will arrange. This is known as an investigation meeting.
At the meeting, an ERA member, who is the person who will make the decision about your case, will talk with you and the other party. The member will make sure you are not disadvantaged by not being represented.
If you don’t want to represent yourself, you can ask somebody for help. This might be a friend, whanau member, experienced community leader or an advocate such as a union official or a lawyer.
A representative can help with gathering important evidence, asking necessary questions and clearly stating legal arguments.
Professional representation can be expensive. If your case is successful, the other side may be ordered to pay some of your costs of representation.
If you meet certain criteria, you may be eligible for legal aid.
Steps in the process
If you’re bringing the claim, you are the applicant. If you’ve had a claim brought against you, you are the respondent.
Steps in the process include:
- The applicant fills out an application form that describes the problem in detail, as well as any supporting evidence and the solutions they’re looking for.
- The respondent must respond within 14 days and give their point of view.
- The ERA will sort through the issues by asking for explanations and for any more necessary documents or other information. This usually involves a case management conference by phone with both sides. You and other witnesses may be asked to provide written statements about what you say happened.
- You will usually be asked to attend an investigation meeting. At this meeting:
- the ERA member will sort through the evidence and ask witnesses questions. Everyone who provided a witness statement must attend to answer questions. Before answering questions, witnesses will be required to swear or confirm that what they say is the truth. Witnesses may be asked questions by the other party.
- the ERA will take into account the relevant law. Throughout the process you or your representative will be given the opportunity to talk about the evidence and refer to any applicable legal principles.
Make a claim
To bring a claim to the ERA, follow the steps on their website.
Getting a decision
The ERA decision about your case will be set out in a written determination. A determination is a public document, unless the applicant or respondent has asked for and been granted a non-publication order before the determination was issued.
When the investigation is finished, the ERA will make a decision within a certain timeframe. This decision is final and legally enforceable.
You can search the employment law database for past ERA decisions.
To resolve a problem, the ERA can make an order that requires the employee or the employer to do something. This is known as awarding a remedy.
Common remedies include:
- Interim reinstatement – If an employee was dismissed, the ERA can order that the employee be re-instated on a temporary basis while the ERA investigates whether the dismissal was justified. This allows the employee to return to work.
- Reinstatement – If the ERA finds an employee was unjustifiably dismissed, where practical and reasonable to do so, the ERA must order reinstatement if the employee wants to return to their job.
- Reimbursement – If an employee was dismissed or subject to other unjustified action by their employer, they may get reimbursement for lost wages. This may cover either the time until they are reinstated or until they get another job.
- Compensation for hurt and humiliation – The ERA may order compensation to be paid to an employee for hurt and humiliation caused by the dismissal or unjustified action.
- Compliance – The ERA may order:
- an employer to pay wages and holiday pay owed to an employee
- employees and employers to comply with the terms of their employment agreement or any settlement agreement
- one or other party to pay a penalty if one is allowed in the Employment Relations Act.
If you are not paid any money the ERA has ordered be paid to you, you can:
- ask for a certificate of determination from the ERA and file an application in the District Court for enforcement, or
- apply for a compliance order from the ERA.
Fees and costs
The ERA website lists their fees for making an application to the ERA.
In addition to any application fees, the ERA may also order the unsuccessful party to pay a contribution towards the successful party’s costs of representation. This is known as ‘costs’.
If you are unsuccessful in bringing or defending a claim, the ERA may order you to help pay the legal costs of the successful party.
For example, Gus makes a personal grievance claim against his employer Nabila:
- If Gus is successful in his claim (the ERA finds that he has a personal grievance) then Nabila may be required to pay costs to Gus.
- If Nabila is successful in her defence (the ERA finds that Gus did not have a personal grievance) then Gus may be required to pay Nabila costs.
Costs will not be awarded when the successful party did not pay for representation.
The Authority will typically not consider an assessment of costs and expenses until the substantive determination has been made.
Parties are encouraged to first try to solve costs on their own terms. If they cannot agree, the Authority will set a timetable for assessing costs. Usually the Member will require the successful party to lodge any claim for costs in writing, providing a copy of that document to the other party. The other party will then have the right of reply.
The amount of costs awarded depends on the time spent at investigation meetings. The current starting point is $4,500 for the first day of a matter, and $3,500 for any subsequent days.
For example, if an investigation meeting lasts one and a half days, the starting point for costs would be $6,250. Other factors may increase or decrease costs.
Investigation meetings can range from a few hours to a few days depending on how complex the case is.
The Authority’s discretion regarding costs is generally to be exercised on a presumption that the following categories of matter are not subject to a daily tariff and that parties bear their own costs:
- referrals for bargaining facilitation;
- disputes about the application, interpretation or operation of a collective agreement;
- pay equity processes;
- screen industry processes;
- fair pay agreement processes;
- collective bargaining disputes;
- disputes about access to workplaces; and
- fixing of the terms of a collective agreement.
For all other matters that the Authority may investigate (such as personal grievances and breaches of employment agreements) parties should evaluate what they do in those proceedings on the understanding that, if unsuccessful, they will usually have to contribute to the costs of the successful party, as well as meeting their own costs.
In addition to awarding costs relating to representations, the ERA may award disbursements. This is a contribution to other costs involved in bringing or defending the claim, such as filing fees, office expenses (eg. photocopying) and witness travel costs.
Disbursements are not worked out on a daily basis. If the ERA decides to award disbursements, it will set a contribution based on the actual costs.
Facilitating collective bargaining
The ERA can assist parties who are collective bargaining by facilitating the bargaining. This can only happen if a party to the bargaining requests it, in particular circumstances.