Resolving Employment Relationship Problems – A Practical Guide

Early Intervention

Tips and Tricks

  • Be proactive early on when an employee raises an employment relationship problem.  The earlier you intervene, the more likely the matter will be resolved and the more options available.
  • Review your employment agreements and policies – what do they provide for in respect of early intervention and dispute resolution?
  • Consider informal resolution techniques.
  • Create a workplace culture that supports early intervention.
  • Organisations should consider:
    • what channels for raising disputes are there?
    • can people escalate matters if the concerns relate to people in the management team?
    • are there people in the organisation who are equipped to help resolve low level disputes?
  • Train and equip managers to deal with employment relationship problems early on.
  • Document everything carefully, even before an employment relationship problem is formalised.

Without Prejudice Discussions

There are five factors to consider when entering into without prejudice discussions.

  • Timing – avoid predetermination risk.
  • A genuine dispute – the dispute needs to be a difference of opinion about matters relating to the employee’s employment, that could become contentious.
  • Attempt to compromise – the parties need to be trying to resolve the differences between them i.e. to reach a compromise.
  • Agreement to participate and protection– is being “off the record” or “in confidence” enough?
  • Documentation – how to seal the deal.

Mediation

What is it?

This is an informal and confidential process where parties to an employment dispute meet to discuss their differences and attempt to reach a resolution with the help of an independent third party, called a mediator.

Key features:

  • Usually voluntary, although the Employment Relations Authority (ERA) has the ability to direct parties to mediate.
  • MBIE provides free Mediation Services in New Zealand, although private mediation may be appropriate sometimes (i.e. availability, specific skills, industry knowledge etc.)
  • Mediation is a relatively informal process, but preparation is key.
  • Different strategies can be employed depending on the outcome you want to achieve. Plan this in advance.
  • There is no requirement for parties to have representation at mediation, although this is useful (particularly if the other side has representation).
  • Process: introductions, opening statements, breaks, and mediator as the “messenger”.
  • Confidentiality.
  • Mediators have no power to make or impose decisions – but they can provide binding recommendations if the parties expressly agree in advance.
  • Advocates vs legal counsel – there is a difference.

Settlement Agreements

Where a resolution is reached during mediation, mediators can draw up a settlement agreement on the day.  This is useful in several respects:

  • Prevents employees from ‘getting cold feet’ and changing their mind.
  • Can be certified under section 149 of the Employment Relations Act 2000 (Act).
  • Once certified:
    • the terms are final and binding and enforceable;
    • the terms may not be cancelled; and
    • cannot bring the terms before the ERA or Court, except for enforcement purposes.
  • A breach of a section 149 settlement agreement can result in a penalty.
  • Non-section 149 settlement agreements – different ways to enforce and pros and cons.

Employment Litigation – Employment Relations Authority and the Employment Court

What is the ERA?

  • A formal institution that is established by the Act and presided over by Authority Members.
  • First step in a formal employment litigation process (generally).
  • Investigative body – what this means.
  • The importance of jurisdiction.

Key things to be aware of

  • The process – from the statement of problem to the investigation meeting.
  • Evidence –  selection of witnesses, briefing witnesses, and supporting documentation.
  • Strategic considerations.
  • Advocates vs legal counsel.
  • Costs regime.

The Employment Court

  • A formal “specialist” court that is established under the Act and presided over by Employment Court Judges.
  • What is heard in the Employment Court:
    • Appeals (as of right) from the ERA;
    • Cases that are removed on application from the ERA to the Employment Court;
    • Cases that can only be heard by the Employment Court
  • Adversarial body – what this means.
  • Costs regime.
  • What happens after the Employment Court.

How we can work well together

  • Provision of all relevant information early.
  • Support for witnesses.
  • Regular updates and clear communications between clients and counsel.

Who can help