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.


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