COVID-19 update 24 March 2020
The Employment Relations Authority (Authority) has postponed all investigation meetings scheduled for the next four weeks up to and including 24 April 2020.
Some cases may continue: Authority Members will consider whether investigations of some matters can continue sooner through use of telephone conference, audio-visual link or be decided by written evidence and written submissions only.
Lodging new applications: Parties can still lodge new applications to the Authority online. Most applications to the Authority are already lodged this way.
Case management conferences: Authority members will also continue, where possible, to hold case management conferences by telephone with parties or their representatives to discuss arrangements for dealing with both existing and new applications.
Timetable directions: Parties should continue to follow timetable directions already made to lodge witness statements and documents for investigation meetings that were scheduled to be held in the next four weeks or in the months afterwards. This will enable postponed investigations to continue more promptly once the Covid-19 alert level is reduced sufficiently to allow new dates for face-to-face investigation meetings to be set. If there are difficulties meeting those directions, parties or their representatives should contact the Authority so alternative arrangements can be made.
Contacting Authority offices: The Authority administrative staff remain available by email and telephone to deal with queries about applications.
Next steps: The Authority will contact parties or their representatives over the coming weeks about currently scheduled cases and whether any steps can be taken to progress them by alternative means.
What is the Employment Relations Authority?
The Employment Relations Authority (ERA) is an independent organisation that sits below the Employment Court.
The ERA 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.
To resolve an employment problem through the ERA, follow the steps on the ERA website (external link)
Going to the Employment Relations Authority (ERA)
Any employer or employee who has an employment problem can apply to have their case heard at the ERA.
If you haven’t tried using mediation to solve your problem, the ERA may suggest you try mediation. Even if you have tried mediation, the ERA may suggest trying mediation again, if they feel it might solve the problem.
Representation in the ERA
You can represent yourself in the ERA. If you feel confident, you can fill out the required forms and prepare to explain the facts yourself at an investigation meeting.
The member or person who runs the process will make sure that 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 a professional advisor such as a union official or a lawyer.
A lawyer or employment advocate can help with gathering important evidence and clearly stating legal arguments. A professional may also be trained in the cross examination process.
Professional representation can be expensive. If you’re successful in the ERA the other side may help pay your legal fees through an award of costs.
If you meet certain criteria, you may be eligible for legal aid.
Making a claim in the ERA
To make a claim in the ERA, follow the steps on the ERA website (external link) .
The ERA’s process is more formal than mediation but less formal than the Employment Court.
The process is run by a person called a member. Members are experts in employment law. They are independent and will only speak to you if both sides are present.
If you’re bringing a 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 more proof or evidence. This usually involves a case management conference by phone with both sides.
- You will then attend an investigation meeting. This is a formal meeting in which:
- the member will sort through the evidence and ask questions of witnesses. Everyone who provided a witness statement must attend to give evidence. When giving evidence, witnesses will be required to swear or confirm that what they say is the truth. Witnesses may be cross-examined or questioned by the other party when giving evidence.
- the ERA will take into account the relevant law. Throughout the process you or your representative will be given the opportunity to make legal arguments and refer to any applicable legal principles.
Making a decision
When the investigation is finished the ERA will make a decision within a certain timeframe. This decision is final and legally enforceable.
The ERA must give either:
- a verbal decision followed by a written record of that decision within 1 month, or
- a verbal indication of its initial findings followed by a written decision within 3 months.
In exceptional circumstances, either of these times may be extended.
If there are good reasons, the ERA might not give a verbal decision or suggestion straight away. They will still have to give a written decision within 3 months.
You can search the employment law database (external link) for past ERA decisions.
In order to help resolve a problem, the ERA can make a legally binding order that requires the employee or the employer to do something.
This is known as awarding a remedy. Remedies require one side to do something, which is usually to pay the other side a sum of money. Common remedies include:
- Interim reinstatement - If an employee has been dismissed, the Authority can order that they be re-instated on a temporary basis while the Authority investigates whether the dismissal was justified. This allows them to return to work.
- Reinstatement - If the Authority finds an employee was unjustifiably dismissed they must order reinstatement if the employee wants to return to their job wherever it is practicable and reasonable to do so.
- Reimbursement – if an employee has been dismissed or subject to other unjustified action by their employer, they may get reimbursement for wages lost. This may cover either the time until they are reinstated or until they get another job.
- Compensation for hurt and humiliation – The Authority may order compensation to be paid to an employee for hurt and humiliation caused by dismissal or unjustified action.
- Compliance – The Authority 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.
Fees and costs involved in going to the ERA
The ERA website lists their fees for making an application in 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 legal fees. This is known as ‘costs’.
If you’re 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 amount of costs awarded depends on the time spent at investigation meetings. The current starting point (as of August 2016) 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.
For any cases lodged in the Authority before 1 August 2016, the starting point for costs is $3,500 per day.
In addition to costs relating to legal fees, 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 (e.g. photocopying) and 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.
Facilitation of 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.