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HomeOpinionUnderstanding the Employment Claim Process

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Ashleigh Fechney
Ashleigh Fechneyhttps://www.ashleightheadvocate.co.nz/
Ashleigh the Advocate is an employment law advocate who provides representation to employees and employers. In her advocacy, she is a fierce advocate for access to justice, and in doing so, provides a significant amount of legal information through her blogs and Facebook profile. As she says, she sells her representation, not her knowledge.

Understanding the Employment Claim Process

Employment claim news

There are rigid processes associated with raising a claim in employment law.

This article aims to generally highlight the process, and it should be read alongside the templates provided on my website.

Raising your claim

The first step is to raise your claim with your employer. You can use the templates available on my website.

If you are raising a personal grievance, you have 90 days to raise this with your employer. If your employment has been terminated, the 90 day period will commence on your final day of employment. However, if your claim is an ongoing disadvantage, the 90 day period will commence on the conclusion of that disadvantage. For example, if you have been continuously bullied, the 90 day period will start when you stopped being bullied: perhaps because you resigned, or the bully resigned.

If you are raising a claim for breach of employment standards you have six years to raise this with your employer. This includes claims for:

  • Breach of the Individual Employment Agreement.
  • Breach of the Holidays Act 2003.
  • Breach of the Employment Relations Act 2000.
  • Breach of the Wages Protection Act 1983.
  • Breach of the Minimum Wage Act 1983.

Whichever claim you raise, you must invite your employer to mediation services to seek to resolve the matter informally.

Mediation by Agreement

If your employer agrees to attend mediation, you will need to apply for mediation services.

If mediation is successful, you will be required to sign a Record of Settlement. The mediator will discuss this with you.

If mediation is not successful, and you wish to progress your claim, you will need to apply to the Employment Relations Authority. There is a fee of $71.56 associated with this. Don’t worry if your application does not contain every single detail: you will have an opportunity to write your evidence separately.

The other party will have 14 days to respond to your application, and then the matter will likely go on a waitlist. An Authority Officer will contact you to let you know.

Mediation by Direction

If your employer does not agree to attend mediation, and you wish to progress your claim, you will need to apply to the Employment Relations Authority. There is a fee of $71.56 associated with this. Don’t worry if your application does not contain every single detail: you will have an opportunity to write your evidence separately.

The other party will have 14 days to respond to your application, and then it is likely that the matter will be directed to mediation. This means that the parties are required to attend mediation.

If the other party does not engage with the mediation process, and refuses to accept any of the proposed dates provided by mediation services; please contact the Authority Officer who has been handling your case.

If mediation is successful, you will be required to sign a Record of Settlement. The mediator will discuss this with you. The mediator will also contact the Employment Relations Authority to inform them that the matter is closed.

If mediation is not successful, and you wish to progress your claim, you will need to email the Authority Officer who has been handling your case. The matter will likely then be placed on the waitlist.

Case Management Conference

The next time you’ll be contacted will be to organise a teleconference with a Member of the Employment Relations Authority and the other party. The Authority Officer will arrange the scheduling of this call. It usually only lasts 15 minutes.

The purpose of this teleconference is to discuss timetabling and other organisational needs. The Member will likely ask:

  • How many witnesses you plan on having.
  • Your available dates for an Investigation Meeting.
  • Your ability to meet due dates for Briefs of Evidence.
  • The Member may also wish to clarify some aspects of your claim. This is not to test your claim, but rather to ensure that the Member understands the basis of your claim.

If you have any needs or requirements, please address these with the Member at the teleconference. This is important if you have a disability which needs accommodations.

Briefs of Evidence

The next step is to write your brief of evidence. This is your story. You should start your story from the beginning, and write as much detail as you can. The more detail you can include, the less you’ll be asked at the Investigation Meeting. You will be required to swear or affirm your evidence, and you might be cross-examined on your evidence, so make sure it is absolutely accurate.

You will want to cover the facts surrounding the case, how you felt, as well as any evidence about your attempts to find employment after dismissal. You can attach additional evidence to your brief of evidence.

You may have supporting briefs of evidence from friends, family, and ex-colleagues. Each person who provides a brief of evidence must be prepared to attend the Investigation Meeting in person. Accommodations may be made to have the witness appear by phone; you will need to address this with the Employment Relations Authority.

I suggest that you have at least one person provide evidence on how this has impacted you. You may have a spouse, child, or close friend who can simply verify the hurt and humiliation you suffered.

You will be required to file these with the Employment Relations Authority by the due date. The Authority Officer will provide you with further detail on this.

The other party will then produce their briefs of evidence to the Employment Relations Authority.

You may get an opportunity to provide briefs of evidence in response. If you are provided with this opportunity, make sure you are only responding to points raised in the Respondent’s briefs of evidence. For example, you could say: At paragraph 6 of John Smith’s evidence, he claims that XYZ. This is not what happened. In fact, ABC …

You will be required to file these with the Employment Relations Authority by the due date. The Authority Officer will provide you with further detail on this.

Investigation Meeting

The Investigation Meeting is an informal process. It is not like a Court process, and it looks more like a boardroom than a courtroom.

The process is simple:

  • The Applicant’s witnesses (including the Applicant) will provide their evidence. The witnesses will first be given the opportunity to add to their evidence. They will then be questioned by the Member, and may be cross-examined by the Respondent.
  • The Respondent’s witnesses will provide their evidence: same as the above.

As you will be self-represented, there is no obligation to cross-examine the other party. However, if you wish to do so, remember the following basic rules:

Only ask yes or no questions. You can achieve this by formatting your questions in the following way:

Isn’t it correct that …

Wouldn’t you agree that ..

In your evidence, you just claimed that you said ABC. However, do you agree that in Document A, you’ve said XYZ?

  • Only ask questions you know the answer to.
  • Do not ask questions that the Member has already asked.

There is plenty of material online if you wish to prepare cross-examination questions. There is an art to cross examination. Remember, you will not get a second opportunity to question a witness.

Once the questioning has completed, the Member may then invite the parties to provide oral submissions, or may ask that written submissions be provided at a later date.

Submissions

You will be self-represented, and there will not be a high threshold required for submissions. However, the purpose is to tell the Member why you believe you have a claim: and to support that belief with evidence.

I recommend that you pre-prepare written submissions, and amend these during the Investigation Meeting so that you can also provide oral submissions at the end. If you have pre-prepared written submissions, you can provide these to the Member to consider (even if they are in draft format, it will assist them in their decision making).

The Decision

Do not expect to receive a decision on the day. The Member may decide that they have enough information to provide an oral decision, but the decision will usually be provided in writing. The Member will have three months to provide you with a written determination.

This will be emailed to you once the determination has been released. You will usually receive this a few days before it is published online.

If you wish to appeal the determination, you only have 28 days to file with the Employment Court.

MUST READ: The risks of progressing a claim

There are risk of progressing a claim at the Employment Relations Authority: and this is something you must be aware of before commencing the process.

If you progress your claim to the Employment Relations Authority, and you are unsuccessful, you will be required to contribute towards your employers legal fees. The starting point for this is $4,500 for the first day, and $3,500 for every day thereafter.

It is also true that if your claim is heard at the Employment Relations Authority, it will likely be made public on the Employment NZ website.

Lawyers will attempt to use this to scare you; and while this is a real risk, I wanted to provide some information on the practical realities of progressing a claim in the employment jurisdiction.

There are virtually no risks until you get to the ERA

This is a very important point: there are virtually no financial risks until you actually get to the Employment Relations Authority. If you’ve read my blog about the employment law process, you’ll know that the very last step is the Investigation Meeting at the Employment Relations Authority.

This means that you can progress your claim to mediation without any financial risks; irrespective of whether you were required to apply to the Employment Relations Authority to be rediverted to mediation.

This is a powerful thing to know. The statistics show that 80% of claims will resolve at mediation, which means there is a good chance that your claim will resolve at mediation. However, it is also empowering to know that you do not need to progress past mediation. If you are concerned about the costs of progressing, you can simply withdraw your case after mediation.

This withdrawal doesn’t have to be permanent. You have three years to progress a personal grievance after you have raised it. This means that you could withdraw your claim for the time being, but you may wish to continue when you are in a better financial position.

In fact, I think that mediation can be a helpful way for you to understand whether it’s worthwhile progressing your claim. The mediators at MBIE can assist you in understanding your claim and your risks, and many will help you go through a pro/con analysis. This part of the process is absolutely free, and it is invaluable in my opinion.

Publication

The biggest fear with publication is that a future employer would read your determination on the internet, and irrespective of whether you are successful, determine you are a trouble maker. This is a significant reality, and many applicants before the Employment Relations Authority have struggled to find employment.

I need to be straight up: Most cases will be published. However, if you believe you have good grounds for non-publication, you may make a request to the Employment Relations Authority that either your name, or the names of both parties, be removed from publication.

There is a high threshold with this; so don’t get your hopes up. However, if there are genuine concerns for your safety, your health and wellbeing, or your privacy; then non-publication may be granted.

The Employment Relations Authority could also choose not to publish certain facts. For example, if you disclose that you had become suicidal as a result of the trauma experienced in your workplace; the Employment Relations Authority may not publish this information.

It is possible to progress to the non-publication application stage, and then withdraw if you are not granted non-publication. This is a preliminary matter that is often heard well in advance of the Investigation Meeting.

Mitigating costs

If you are unsuccessful at the Employment Relations Authority, you will be provided an opportunity to give submissions on the matter of costs. This means you will be given the opportunity to write to the Employment Relations Authority, arguing why you shouldn’t be required to pay the full contribution to costs (the starting point being $4,500 for the first day, and $3,500 for every day thereafter).

While it is true that costs generally follow the event, you can make the following arguments (in accordance with the principles from the Employment Court case PBO Limited (Formerly Rush Security Limited) v Da Cruz:

The Employment Relations Authority has the discretion to determine whether costs should be awarded and what amount.

The discretion is to be exercised in accordance with principle and not arbitrary.

The Employment Relations Authority must consider its obligations to equity and good conscious.

Costs are not to be used as a punishment or as an expression of disapproval of the unsuccessful party’s conduct.

The Employment Relations Authority can consider whether the other party’s costs were unnecessary or unreasonable.

In some cases, it has been beneficial for the employee to argue that they do not have the financial means to pay a costs award. You will need to provide evidence of your financial status, and you may want to propose to the Employment Relations Authority that a payment plan be implemented.

It will also be beneficial to highlight that you are self-represented, and shouldn’t be unjustly disadvantaged by your limited means to seek legal assistance. The other party were aware that you are self-represented, and they had the opportunity to progress matters with limited representation: thereby reducing their own costs.

If costs are a genuine concern, and you meet the threshold for legal aid, you may want to consider progressing to mediation by yourself; and then seeking the assistance of a legal aid representative. One option is Ashleigh the Advocate.

Conclusion

This is a brief overview of the process, and the process may change from time to time due to the informal nature of employment law proceedings. If you have any questions, please get in touch.

Ashleigh the Advocate provides free initial advice, and if you require representation she works on an ethical “No Win, No Fee” structure: providing you with quality advice and representation with no upfront costs. Her phone number is 027 555 999 5. Alternatively, you may wish to follow her on Facebook, where she routinely post about employment law.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of DTNZ.

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