Resolving Employment Relationship Problems – A Practical Guide
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.
- 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”.
- 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.
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.