Find out why the ERA denied the worker's request to reopen the investigation
The Employment Relations Authority (ERA) declined a worker's application to reopen her case after she won four workplace disadvantage claims but lost her dismissal and discrimination claims, with the Authority finding no new evidence warranted reconsideration.
The worker had previously succeeded on claims involving suspension, workplace teasing, removal of supervisory duties, and procedural failures, but was unsuccessful on medical incapacity dismissal and disability discrimination claims.
She sought to reopen the case, arguing errors in findings and unresolved wage issues.
The ERA found the application merely attempted to re-argue claims already decided without presenting new evidence that was unavailable during the original investigation.
The Authority declined the reopening application, noting a challenge was already lodged in the Employment Court.
Original determination outcomes and reopening grounds
The Authority's original determination dated 5 March 2025 upheld four disadvantage claims against the employer relating to workplace suspension, regular teasing and joking, unilateral removal of supervisory duties, and procedural failures in addressing grievances while simultaneously investigating the worker's conduct.
The worker was unsuccessful with claims for unjustified dismissal based on medical incapacity and workplace discrimination on grounds of disability due to dyslexia.
Following this mixed outcome, the worker's representative lodged a reopening application on 2 April 2025 seeking to challenge several findings from the original determination.
The reopening application raised six main issues, including alleged errors in findings about refusing medical assessment, claims that the workplace caused the worker's ill health, technical errors in non-publication orders and trespass notice dates, challenges to the discrimination finding, and assertions that wage losses and statutory entitlements remained unresolved.
Legal framework for reopening applications
The ERA has statutory discretion to order the reopening of an investigation on terms it considers reasonable.
The Authority applies principles developed by the Employment Court for exercising similar discretionary power to order rehearings as a useful framework when considering whether to reopen investigations.
The applicable principles establish that reopening jurisdiction is not to be exercised for re-agitating arguments already considered or providing a backdoor method for unsuccessful litigants to re-argue their case.
Some special or unusual circumstance must exist to warrant reopening, such as fresh evidence that could not have been discovered with reasonable diligence.
Other grounds for reopening include situations where a significant statutory provision or authoritative decision has been inadvertently overlooked or misapprehended, or some other special circumstance exists.
The threshold test requires the party seeking reopening to establish that there would be an actual miscarriage of justice or at least a real or substantial risk of miscarriage if the determination were allowed to stand.
Assessment of medical incapacity and discrimination claims
The worker's submissions regarding medical incapacity extended to 42 pages, but the ERA found it was not immediately evident that there was any new evidence that was unavailable when the Authority originally investigated the claims.
The nature and length of submissions suggested the Authority's findings on medical incapacity and discrimination were simply not accepted by the worker.
Regarding medical assessment, the worker referenced an email suggesting two medical practitioners confer and argued there was no refusal to undergo medical evaluation.
The ERA noted the relevant employment agreement clause enabled the employer to require a medical report once the medical incapacity process was engaged.
The Authority found this submission did not engage any new evidence but sought to draw on information already before the Authority to re-argue the claim in light of the original determination.
Similarly, regarding discrimination findings, the worker submitted that she had informed her employer of her disability by providing literacy references and hospitality qualifications at the commencement of her employment in 2015.
Human Rights Act considerations and procedural choices
The worker's submissions argued the Authority did not consider discrimination under sections 21, 22 and 23 of the Human Rights Act 1993.
The ERA found this submission failed to take into account the choice of procedures provision in section 112 of the Employment Relations Act 2000.
The Authority noted for completeness that this provision was brought to the worker's representative's attention during the original investigation.
The choice of procedures provision governs how discrimination claims can be pursued through different statutory frameworks and which forum has jurisdiction over such claims.
The ERA determined that the Authority had made findings based on evidence differing from the worker's position; however, no new evidence related to discrimination claims appeared to warrant reopening the investigation.
Technical corrections and wage claim assertions
The Authority issued an erratum on 4 September 2025 correcting errors regarding the year an incident occurred in the non-publication order and the date of a trespass notice.
The erratum also corrected references to two witnesses who were incorrectly recorded as giving evidence for the employer.
These technical corrections addressed some of the worker's concerns raised in the reopening application.
However, the ERA found there was no new information to support submissions that alleged wage losses and statutory entitlements remained unresolved from the original determination.
The Authority noted the worker had also lodged a challenge to the original determination in the Employment Court.
The employer's counsel advised that the Court had granted an extension for filing the statement in defense until 14 days after the Authority determined the reopening application.
Finality principles and challenge procedures
The employer opposed the reopening application on the grounds that a challenge was already lodged in the Employment Court and no new evidence had been disclosed that was not or could not have been available at the Authority's original investigation. The employer also noted no miscarriage of justice had been identified.
The employer raised concerns about the length of submissions and continued assertions made against him, submitting the reopening application was an attempt to relitigate the matter.
The ERA considered these concerns alongside applicable legal principles about reopening applications and finality in litigation.
Where a party is dissatisfied with an Authority determination on grounds that may be subject to the specific statutory process of a challenge under section 179 of the Employment Relations Act, the Authority should be reluctant to entertain a reopening application on those same grounds. This principle promotes certainty and finality in litigation.
Determination and costs reservation
The ERA concluded that, considering the applicable principles about reopening, noting a challenge was already lodged in the Employment Court, and finding no new information relied on that was unavailable when the Authority originally determined the matter, the reopening application should be declined.
The Authority found the general thrust of the submissions was a challenge to the parts of the original determination where the worker was unsuccessful, rather than the presentation of special circumstances or new evidence warranting reconsideration.
The overriding consideration of the interests of justice, balanced against finality in litigation, supported declining the application.
Costs were reserved, with parties encouraged to resolve cost issues between themselves.
If the resolution proved unsuccessful, the employer could lodge a costs memorandum within 28 days, with the worker having 14 days to respond.
The Authority indicated it would determine costs on the usual daily tariff basis unless circumstances required adjustment.
