Employment relationship problems that can’t be settled by mediation head to the Authority, Court
In a previous article, we introduced the dispute resolution process in the employment jurisdiction by discussing mediation. This article discusses the Employment Relations Authority (Authority) and the Employment Court (Court), which are the next steps in the disputes process.
The Authority has exclusive jurisdiction to make determinations about employment relationship problems generally.
Examples of employment relationship problems include, for example, disputes about the interpretation, application, or operation of an employment agreement, breaches of an employment agreement, whether a person is an employee, and personal grievances.
The general rule is that if a problem has arisen from or is related to employment, parties cannot pursue their claim in any other body or court. There are a few exceptions - for example, where the claim relates to human rights and privacy, where parties can choose between pursuing their claim in either the Authority or the Human Rights Review Tribunal.
Certain matters can also be removed to the Court, either on the Authority’s own motion or the application of a party. The types of cases that bypass the Authority will most commonly involve an important question of law or be urgent and of public interest. The recent Siouxsie Wiles case, for example, was removed to the Court rather than being heard in the Authority for those reasons.
The Authority is different from what might be imagined as a traditional court – in fact, it is not a court, but rather is an investigative body.
Section 157 of the Employment Relations Act 2000 describes its role as “establishing facts and making a determination according to the substantial merits of the case, without regard to technicalities.” This means that the Authority is much more informal than you may think.
For example, while the parties are required to file “formal” documents such as a statement of problem (the document that sets out the employment relationship problem), and a statement in reply (the document that sets out the other party’s position), there are easy to follow and fill in forms to assist.
The Authority is also able to:
Call for and consider evidence, “whether strictly legal or not” – for example, the Authority can consider hearsay evidence or surreptitiously obtained audio recordings.
Follow whatever procedure it thinks fit – for example, taking evidence from someone who was not proposed as a witness, and even phone them without notice during an investigation meeting.
Appoint decision-makers (called Authority Members) that are not legally qualified.
Investigate and find that a matter is different from how it has been described by the parties in the statement of problem or statement in reply.
In terms of remedies, the types of provisions, awards and orders the Authority can make include reinstatement, reimbursement for lost remuneration, compensation for hurt and humiliation, recommendations, compliance orders, and penalties. The Authority’s determinations and orders are legally binding, so in that sense, it is no different from other courts, like the District or High Court.
In Auckland, the Authority and Mediation Services are now located in the same building and use the same rooms. So, if you have attended an in-person mediation in Auckland in recent years, you will already know what to expect in terms of how it is set up.
The rooms are arranged like meeting or boardrooms. There is a large table in the centre, and the parties generally sit on either side while the Authority Member sits at the head of the table. Witnesses will be “sworn in” (asked to confirm or swear that their evidence will be truthful) but, unlike a court, the attendees remain seated throughout most of the investigation meeting, including when giving evidence.
Like with mediation, parties can also ask to take a break if needed and will be given their own breakout room.
If parties are not satisfied with a determination of the Authority, they may be able to elect for the matter to be heard by the Court. This can be on a “de novo” basis, meaning that the Court will hear the whole matter again, with evidence also being given again.
The Court has many similarities to the Authority, including an ability to refer parties to mediation, and a broad discretion to make decisions or orders as it thinks fit – including, for example, accepting or calling for evidence and information that is not strictly legal. There are of course differences too, notably that the Court is much more formal than the Authority with stricter conventions - for instance, lawyers being robed during hearings and documentation being filed in a prescribed form and manner with a Registrar.
However, only a few matters progress to the Court. For example, from 2021 to 2023, only 17 per cent of Authority determinations were challenged, and even fewer resulted in a judgment of the Court (i.e., the matter settled before it was heard, or the parties chose to discontinue proceedings).
Jodi Sharman is a Partner on the Employment Law Team at Hesketh Henry in Auckland. Bridget Perkins is a Solicitor on the Employment Law Team at Hesketh Henry in Auckland.
