Resolving workplace disputes - Employsure e-guide - www.employsure.co.nz | 1 - Employsure NZ
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Employsure e-guide
Resolving
workplace
disputes
www.employsure.co.nz | 1
Contents.
1 Where to start? 6 Redundancy complaints
2 Informal conflict resolution 7 Employment Relations Authority
3 Mediation 8 Employment Court
4 Personal grievance 9 Human Rights Review Tribunal
5 Constructive dismissal
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Chapter 1 Where to start? www.employsure.co.nz | 3
Chapter 1 | WHERE TO START?
Employsure e-guide
Where to start? What is
good faith?
Any breakdown in the employment Personal grievance and constructive
relationship can be expensive, and dismissal cases can in many cases be
counterproductive. avoided by acting in good faith and
There are three elements
When a breakdown stretches from a following best practice as outlined in this which collectively make up
miscommunication, or any other minor guide. good faith:
problem, to a dispute there are some
actions employers can take to minimise • Neither party acting in a
its damage. misleading or deceptive way
Whether the situation calls for an
informal meeting, or the intervention of • A commitment to be
the Employment Relations Authority, responsive and continue
managing a workplace conflict can communication
be stressful. It is helpful to remember • Decisions that affect
that every business owner experiences employees must be
disputes occasionally, and the best
communicated prior to the
resolution comes through following
correct procedures.
decision being made, and
employees must be given
Every action between an employer and an opportunity to respond
an employee should be in good faith,
and dispute resolution is no exception.
www.employsure.co.nz | 4
Chapter 2 Informal conflict resolution. www.employsure.co.nz | 5
Chapter 2 | INFORMAL CONFLICT RESOLUTION
Employsure e-guide
Internal conflict resolution. Employer tip.
If the issue which has caused a More importantly, the first steps • Clarify the issue with an
dispute is a minor one, or is unlikely in conflict resolution should be a employee
to happen again, an employer may discussion initiated by the employer • Start a dialogue
find a simple conversation can help. to resolve the issue. At this step • Focus on resolving the
Where an informal action does not clarifying what the problem is and situation
work, there are more formal actions trying to resolve it in a consultative
for employers, such as formal manner will be key to success. In
warnings or disciplinary action. the event the dispute has not been
resolved through informal methods,
Conflict resolution through informal there may be a need for mediation.
action is always the preferred option
as it tends to be quicker, cheaper
and will likely not damage the
relationship between employees and
employers. There are some basics
to be incorporated into any informal
action however, such as being honest
and upfront in any conversation
with the employee and treating staff
consistently and without favouritism.
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Chapter 3 Mediation. www.employsure.co.nz | 7
Chapter 3 | MEDIATION
Employsure e-guide
Dispute resolution and mediation. What happens
if mediation
Dispute resolution can be difficult
to manage when the disputing
Successful mediation will end in a
record of settlement which will be
does not work?
parties are both directly involved. a written agreement of what has
To help in conflict resolution, the been decided upon. This will be
Ministry of Business, Innovation, checked by Employment Mediation There are many cases each
and Employment has free access Services, which is a government year of employers and
to mediation available to both representative, and signed off by all employees not agreeing on
employers and employees. parties if agreed to. something, and a dispute
escalating beyond mediation.
There is a formal process to If a dispute cannot be
be followed which starts with
resolved through mediation,
completing a Request for Mediation
form, after which a date will be set the dispute will likely head to
for the meeting. The meeting will the Employment Relations
take place in an environment both Authority, Employment Court,
parties are comfortable in, often this or in rare cases the Human
will be offsite. Rights Review Tribunal.
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Chapter 4 Personal grievance. www.employsure.co.nz | 9
Chapter 4 | PERSONAL GRIEVANCE
Employsure e-guide
What grounds do employees have to escalate
their complaint?
Personal grievance.
A personal grievance is an official complaint made by an employee against an employer, and can be made against a
current or previous employer. Complaints classed as a personal grievance cover a number of topics including, but not
limited to:
• An unjustifiable dismissal, where an employee feels there was no reason for their dismissal, or the process followed
by their employer was not fair or reasonable
• Where the employee believes they have been subject to discrimination by their employer, relating particularly to the
employee’s sex, marital status, religious belief, ethical belief, colour, race, ethnic or national origins, disability, age,
political opinion, employment status, family status or sexual orientation
• Sexual or racial harassment
• Duress relating to membership of a union
• An employer failing to follow a fair and reasonable process in respect of taking any action against an employee, such
as changing the employee’s terms and conditions, or making their role redundant
• Pressuring an employee to perform an act in breach of the Health and Safety at Work Act 2015, or treating them
negatively for their valid and lawful refusal to do so
• An employer retaliating against an employee who has made a protected disclosure of information
• An employer’s failure to protect a person’s employment while they are engaged in Reserve Forces training or service
www.employsure.co.nz | 10Chapter 4 | PERSONAL GRIEVANCE
Employsure e-guide
The process of a personal grievance.
Before an issue develops into a personal grievance, there should be an attempt to resolve it informally, then through
formal mediation. If the issue remains unresolved, the employee may then consider progressing the matter.
An employee must raise a personal grievance with their employer within 90 days of the grievance occurring,
or them becoming aware of it. It is important to note a personal grievance does not need to be raised in writing,
so if an employee does come to an employer with concerns relating to their employment, it is important to ask these
be put in writing, along with the desired outcome. Following unsuccessful mediation, an employee may request that the
Employment Relations Authority investigate the complaint.
What if the grievance is raised after the 90-day period?
If an employee, or a former employee, raises a grievance after 90 days, there
are some things for employers to consider before responding, as engaging the
employee will kick start the process. If an employer disagrees with the employee
After a personal grievance
raising the grievance, it is recommended not to respond, in which case the
has been raised, an
employee must go to the ERA to request an exception to the 90-day cut off.
employee has three years to
start proceedings in the ERA.
For anything to eventuate from the ERA on this matter, there needs to be
After the three years have
exceptional circumstances such as:
passed, proceedings cannot
• The employee made everything available for their representative to raise the be started without the ERA
grievance and the representative failed to do so on time agreeing, which has proven
• Health reasons restricted the employee from raising the complaint in time to be very rare.
• The employment agreement did not explain the options available to raise a
grievance, including a failure to explain the 90-day time restriction
• The employer failed to provide reasons for dismissal in writing after having
been asked to do so.
www.employsure.co.nz | 11Chapter 5 Constructive Dismissal. www.employsure.co.nz | 12
Chapter 5 | CONSTRUCTIVE DISMISSAL
Employsure e-guide
Constructive Dismissal. Constructive
dismissal does not
In cases where an employee feels their resignation was the only choice they need to be a result
had left to resolve a particular issue, they may claim a constructive dismissal. of one particular
To put it simply, if an employee feels an employer’s actions, or lack of action,
has made their working life so unbearable that they could not continue, this
incident, it can be
could constitute a constructive dismissal. a series of actions
If an employee’s case for constructive dismissal is genuine, this would be
or inactions.
considered a reason to raise a personal grievance claim.
Categories of constructive
dismissal.
There are three categories which broadly define constructive dismissal:
• An employee was given a choice between resigning or being dismissed
• The employer deliberately acted to pressure the employee to resign
• The employer acted so poorly towards an employee (by treating the employee
highly unfairly) the employee feels remaining in the job is no longer an option
In determining whether or not the termination of employment has been a
constructive dismissal, it is not necessary for an employer to want the employee
to resign. Ultimately it comes down to whether actions of the employer, caused
the employee to resign, and whether the resignation was foreseeable.
www.employsure.co.nz | 13Chapter 5 | CONSTRUCTIVE DISMISSAL
Employsure e-guide
Defining Constructive Employer tip.
Dismissal. Examples of constructive
dismissal could include:
It can be difficult to understand the difference between an employee simply
resigning, and an employee resigning and making a claim of constructive • An employee resigning
dismissal. The best way to avoid this situation is to ensure any concerns or after being maliciously told
workplace disputes are handled openly and in good faith. to perform unpleasant or
menial work
There are some cases where an employee has claimed constructive dismissal • An employer failing to pay
but the Employment Relations Authority has ruled a constructive dismissal the employee’s wages
did not take place. One key example, is an employee resigning due to stress on multiple occasions, or
but not raising this as an issue to manage. It is therefore important to address paying them late
any concerns raised by employees, to ensure this cannot be used as later • A significant reduction
evidence for a constructive dismissal. in work hours of the
employee, following
a decision made by
the employer with no
consultation or agreement
www.employsure.co.nz | 14Chapter 6 Redundancy complaints. www.employsure.co.nz | 15
Chapter 6 | REDUNDANCY COMPLAINTS
Employsure e-guide
Employee redundancy How much
complaints. notice is
required?
A critical piece to managing redundancy in any workplace, is to remember the
process is about roles and not people. However, over the course of making roles
To avoid employee redundancy
redundant, the people impacted may raise complaints or have objections to how
complaints employers should
the process has been handled. Any downsizing, or business re-structure, involving
determine reasonable notice by
redundancies must have a fair process and follow best practice.
considering:
Redundancy process. What happens when a
• Length of notice an
Following all efforts towards redundancy goes wrong? employee has to give if they
redeployment of an employee, Employers following a fair process, resign (the notice period
if redundancy is the outcome and the with open communication at all should be at least this long)
role can no longer exist, there are still times, should have no concerns • Reason for the redundancy
some steps an employer must take. as to how lawful and compliant • Employee’s seniority and
their process has been However, length of service
The employer must either employ the if an employee should feel they • Industry norms
worker for the remainder of the notice have been treated poorly, they may
period, or pay the amount as though • Employee’s ability to find
complain to a number of bodies, but
this had occurred. Following this, alternative employment in
it will ultimately end up in either the
final wages and holiday pay, as well the industry
Employment Relations Authority or
as any redundancy compensation the Employment Court if this process • Amount of compensation the
which may be due as part of the is unsuccessful. employee with be receiving
terms of the employment agreement,
should be paid to the employee.
www.employsure.co.nz | 16Chapter 7 Employment Relations Authority. www.employsure.co.nz | 17
Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
What is the Employment Does the ERA
Relations Authority? resolve every
dispute?
The employment relationship can be difficult to manage and unfortunately
some issues do become serious enough to require external assistance. Where
an employee and an employer cannot resolve their conflict between them, the Last year the ERA was
Employment Relations Authority (ERA) will play an unbiased role in resolving unable to resolve 185
the issue based on facts and the merits of each case. The Authority operates disputes and these cases
with the powers provided by the Employment Relations Act 2000. were escalated to the
Employment Court.
Involving the Employment Relations Authority in a breakdown in the
employment relationship can be done by either an employer or an employee.
An employee in a dispute with their boss over something like unpaid wages
can contact the Employment Relations Authority. Likewise, an employer
who feels the employee is not complying with the terms of an employment
agreement can also contact the ERA.
www.employsure.co.nz | 18Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
Steps required before The ERA is an
independent body
involving the Employment set up to resolve
Relations Authority. workplace conflict
between employer
The first course of action in resolving disputes is always to try and solve the and employee.
issue between the two parties. As outlined in chapter one and two, employers
should reach out to employees in an attempt to resolve disputes before
they escalate. Following the failure of the two parties to resolve a dispute,
mediation is the next step whereby an independent mediator will sit with both
parties to try and resolve the issue.
Where both of these efforts fail and the relationship has completely broken
down, the Employment Relations Authority will make a determination after
hearing both sides of the story. This is a formal process and can take months
to resolve.
www.employsure.co.nz | 19Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
What needs to be included in Employer tip.
an ERA application? Information required in the
application:
Lodging an application with the ERA Applications are encouraged to
requires preparation, and the more be lodged online, however, the • Who the applicant is
written documentation an employer opportunity to apply by post or in having the problem with,
has about the situation, the better. person also exists. Regardless of this party will then be
This is why it is vital for employers to how the application is made, the known as the respondent
keep records of all communication Application to Authority form needs to • A plain language
with employees. be used and depending on the type description of the problem
of application a fee is also payable. • A statement of the facts
To start a case with the ERA, a which have caused the
statement of the problem must first problem
be lodged using the Application to
• Indication of how the
Authority form. In submitting the
applicant wishes to have
application to the ERA, supporting
the problem resolved
documents are very important including
employment agreements, payslips, • Attached copies of
any correspondence between the relevant documents
parties, and any notes from meetings • An explanation of what
which have taken place. has already taken place to
try and resolve the matter
outside of the era, including
any mediation, with
supporting documentation
www.employsure.co.nz | 20Next steps. Once the application process has been completed and the respondent been provided the application to review, this party has 14 days to provide a Statement in Reply. The Statement in Reply should include the respondent’s plain language description of the problem, their version of facts, and any steps already taken to resolve the issue. Failure to file a statement in reply will lead the ERA to make a decision on how to progress the claim, whether it goes to mediation, a case management conference, or is set down for an investigation meeting. After an employee lodges an application with the ERA, an employer has 14 days to respond with a statement.
Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
Getting the facts clear. Employer tip.
After an application is lodged, and before any investigation meeting takes This can be quite a lengthy
place, the ERA will evaluate the issues which have been identified by either process, going through the
party. The Employment Relations Authority may seek clarification of any point ERA, and both parties should
raised by the employer or employee, ask for additional evidence from either be prepared for this to be
party, or hold a case management conference. the case. However, going
through mediation prior to
A case management conference often takes place via phone and is meant to application will mean the
be brief and informal, involving both parties and a member from the ERA. case is heard quicker.
A case management conference will enable the ERA to:
• Understand clearly the issues under investigation
• Consider all avenues to resolve the problem and determine the most
appropriate option
• Outline the timeframe for additional steps such as supply of supporting
documents or witness statements
• Obtain the details of those giving evidence
• Explain the procedure for the investigation meeting
• Determine an agreeable date, place, and time for the investigation meeting
www.employsure.co.nz | 22Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
The investigation meeting. With good reason,
if the applicant
Investigation meetings are not as formal as Court hearings and often does not make the
accommodate both parties as much as possible, with no party being meeting the matter
disadvantaged. In these meetings, friends, whanau, or supporters are able to
attend with either party and either party can present their own case or have a may be dismissed.
representative do it for them. If the respondent
At the start of the meeting the ERA member conducting the meeting will make
fails to attend, the
introductions and outline how the meeting will work and the speaking order ERA may make
of those present. There will then be questions based on what was provided in
the Statement of Problem and Statement in Reply. The ERA member may ask
a determination
an employer to provide evidence at the meeting verbally, or by way of a written based on whatever
statement so employers and employees should both be prepared to give information is
evidence.
available.
Similarly, every witness who has provided a statement will be required to
attend. The witnesses can expect questions on their statement from the ERA
member, and cross examination may also be used at the meeting. At the end
of the meeting both parties have the option to sum up information which has
been provided to the ERA, part of which may include providing any supporting
legal principles.
www.employsure.co.nz | 23Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
Deliberation and determination. Employer tip.
The final decision in the ERA process is the consideration of all the evidence The issue of costs and
and a determination being made. While a determination is issued in writing, compensation will also be
it is becoming increasingly popular to give an oral indication of how the determined by the ERA,
determination is likely to unfold at the end of the investigation meeting. These with either party, or both,
determinations are legally binding, provided to both parties, and made public. being required to pay the
total costs. The ERA issues
The Employment Relations Authority issues legally binding determinations and legally binding determinations
adheres to a process underpinned by legislation. and adheres to a process
underpinned by legislation.
How does the ERA resolve the situation?
Depending on the type of claim, the ERA might:
• Reinstate an employee who has been dismissed for an interim period while
the ERA continues deliberation
• Allow full reinstatement if the employee wants to return to their job
• Dictate financial reimbursement for employees if it is decided that they have
lost wages following unjustified action by the employer
The ERA may also:
• Decide on compensation for humiliation caused by the action of an employer
• Rule on wages to be paid back to an employee
• Order a settlement between the parties, or order one party to pay a penalty
under the Employment Relations Act 2000
www.employsure.co.nz | 24Chapter 7 | EMPLOYMENT RELATIONS AUTHORITY
Employsure e-guide
Challenging the ERA. Employer tip.
Both employers and employees have a right to challenge ERA decisions, When challenging the ERA,
leading to further investigation, or referral to the Employment Court. Any all documentation needs
challenge must be submitted in writing within 28 days of the ERA’s written ruling. to be submitted on forms
provided by the Employment
There are two options to challenge the ERA ruling: Court. If the forms don’t
follow certain standards of
• Request the Employment Court review the original ERA ruling.
presentation and content an
• Request an entirely new investigation without considering the previous ruling.
application can be declined.
Services of an employment
lawyer or workplace specialist
are usually required to draft
the application correctly.
www.employsure.co.nz | 25Chapter 8 The Employment Court. www.employsure.co.nz | 26
Chapter 8 | THE EMPLOYMENT COURT
Employsure e-guide
The Employment Court. There are fees for
taking a challenge
Employers attending the Employment Court should seek legal advice and to the Employment
representation before proceeding as the Court is more formal and complex Court. In addition to
than the ERA.
the costs of hiring
The Employment Court will hear claims from employees and employers on a a lawyer, which can
number of areas of dispute. In proceedings in the Employment Court, often
it will be the employer defending against a claim from a former employee. In
be very expensive,
which case, there are some basics needed in the statement of defence: the unsuccessful
• Full name, address and occupation of each party party will often
• Specifically state whether the defendant admits or denies the allegations in have to contribute
the statement of claim
• Provide sufficient facts (such as time, place, names) to fully inform the court costs to the other
of the nature of the allegations and defence individual’s legal
• Acknowledgement that the statement is being filed personally, and a service
address of where the court can serve future papers as required fees.
• Signature and date
The process in the Employment Court is strict and there are clearly defined
timeframes of which both the defendant and the plaintiff must comply.
www.employsure.co.nz | 27Chapter 9 The Human Rights Review Tribunal. www.employsure.co.nz | 28
Chapter 9 | THE HUMAN RIGHTS REVIEW TRIBUNAL
Employsure e-guide
The Human Rights Review The Human Rights
Review Tribunal
Tribunal. typically awards
compensation for
Very few employment relations cases reach the Human Rights Review
Tribunal, typically those where a major violation of human rights is claimed to
injury to feelings,
have occurred, and details are not clear enough to make a resolution at the humiliation or loss
ERA. Claims in the Tribunal centre around a feeling of discrimination or bullying of dignity.
where a former employee feels they were treated unfairly based on their
ethnic background, gender, sexual orientation, ethnic origin, disability, political
opinion or other personal attribute. The Tribunal
In a similar manner to both the ERA and the Employment Court, the Human may award up to
Rights Review Tribunal works on a claim based system with many employers $350,000.
becoming involved after an employee has made a claim. This Tribunal will
also be expensive if employers are found to have acted improperly, and
proceedings take a long time to be addressed.
www.employsure.co.nz | 29Chapter 9 | THE HUMAN RIGHTS REVIEW TRIBUNAL
Employsure e-guide
Summary.
Workplace disputes do occur on occasion but employers can minimise the likelihood of ending up in the
Employment Relations Authority or Tribunal by ensuring:
• Policies and procedures are in place to ensure a fair and safe workplace in alignment with the
Employment Relations Act
• A policy of open communication between employers and employees is encouraged in the workplace
• All employee complaints are addressed by employers, regardless of perceived importance
• In the case of disputes, the correct process and procedure is followed
• Employers act in good faith at all times
www.employsure.co.nz | 30Navigating workplace
relations can be confusing.
Employsure works directly with employers to ensure they stay on top of rapidly
changing legislation and provide a fair and safe workplace for their staff.
Whether it be dealing with a difficult employee, facing a tribunal claim or
reviewing work health and safety, our clients can rest assured we have
them covered.
Get in touch with us today to find out how we can help your business grow.
0800 675 700
www.employsure.co.nz
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