Part 9 of the Employment Relations Act 2000: Personal Grievances

Download the response form [rtf 13 pages 184kB]

Please ensure you complete this form and return it by fax, email or post no later than 5pm, on 31 March 2010. 

Please email your completed response to ERconsultation@dol.govt.nz (preferred) or post it to:

Review of Personal Grievances
Workplace Policy Group
Department of Labour
PO Box 3705
Wellington

Please see http://www.dol.govt.nz/consultation for further information.

If you are completing the questionnaire electronically, please feel free to expand the length of the spaces provided for your answers and to attach any supporting documents.  If you are completing it on paper, please feel free to add other pages but make clear which question your answer refers to.  Specific examples of what you think is working well, or could be improved would be welcome.

The response forms has these sections

Personal / organisational information

1. Your full name*
2. Name of your business or organisation (if applicable):
3. Postal address
4. Email address
5. Telephone number(s)
6. Relevant activities you or your business/organisation are involved with
7. Size of business/organisation
8. Are you comfortable with the contents of your submission being a matter of public record i.e. this submission may be requested under the Official Information Act 1982 (personal details will be automatically removed)?

9. How did you find out about this consultation? For example: public notices in the newspaper, the Department of Labour website, employer/employee networks and associations, friends and family, business advisors, other websites, media such as radio or television.

* Please note that your name and contact information will remain confidential to the Department of Labour to the extent that the law allows. The Department of Labour is the intended recipient and holder of the information and can be contacted at PO Box 3705, Wellington, New Zealand.  In accordance with Privacy Principle 7, you have the right to access and correct any personal information you provide.

Part C:  Operation of the Personal Grievance System

Question 1:  Have you been involved in a personal grievance?

1. If so, when was your most recent experience of a personal grievance?
2. Were you an employee, employer, a representative for an employee or employer, or involved in some other capacity in the personal grievance process?
3. How many personal grievances have you been involved in?

Question 2:  If you have been involved in a personal grievance case, which employment institutions were involved?  (for example, mediation services, the Employment Relations Authority or the Employment Court?)  What was the outcome? (If you have been involved in more than one case can you describe the institutions involved and the outcome from the most recent case?)

Question 3: 
Costs in regards to employers:

1. If you think costs for resolving a personal grievance are not reasonable, what would be a reasonable cost?
2. Do you think the average cost of settling an employment relationship problem such as a personal grievance of $5,000 (or $3,000 - $4000 in the instance of an SME) is reasonable?
3. In your experience are these costs higher or lower than other civil or legal disputes?

Costs in regards to both employers and employees:

4. To what extent (if any) does the average cost of settling a personal grievance have on your decision whether or not to make/defend an allegation of a personal grievance through the Employment Relations Authority?
5. Do you have any suggestions for how the cost of either defending or raising a personal grievance can be reduced?
6. Are there any other comments you would like to make in regards to costs, financial or otherwise?

Question 4:  Have you received representation in a personal grievance case?

1. If so, can you describe the type of representation used e.g. “no win, no fee” employment advocate, barrister or solicitor, union advocate, employer representative or other type of employment advocate? If other, can you please specify?
2. What was your experience of the representative in relation to
   1. process
   2. outcome and
   3. cost?

Question 5:  If you have any concerns about the quality or representation in personal grievance cases, how would you suggest the quality of representation in personal grievance cases could be improved?

Question 6: 

1. Do you think the personal grievance system provides a fair balance between employers’ and employees’ interests? For example, does the law fairly balance the duties and rights of employers and employees?
2. Is the balance of fairness about right under the current personal grievance system? If the balance is not fair, how could it be improved to provide a better balance?

Question 7:

1. Do you consider the personal grievance system to be too complex and difficult to understand? If so, can you describe what parts of the system create complexity?
2. The Act contains an objective test for justifiable dismissal. Do you think the current test is appropriate or does it create uncertainty? If it creates uncertainty, can you please describe the areas that create uncertainty?
   For example:
   1. what are your views on whether sufficient or too much emphasis is given to process rather than substance in a case?
   2. do you think minor irregularities in process should be given less emphasis than the actual substance of the personal grievance claim?
3. What test would you consider appropriate if the current test of justification were to change?  For example: what would you consider to be a fair process for addressing an employment relationship problem, such as a personal grievance?

Question 8: Do you consider there are barriers to raising or defending a personal grievance? If yes,

1. What are the barriers to raising a personal grievance case?
2. Are there greater barriers faced by particular groups? For example: women, youth, migrants, part time or casual employees?

Question 9:   What are the barriers to defending a personal grievance case?

Question 10:  Do you have any suggestions for how any barriers to either defending or raising a personal grievance case can be reduced?

Question 11:  Have you experienced delays in raising or defending a personal grievance?

1. If yes, where have these delays occurred in the personal grievance system and what effect has this had on you?

Question 12:  Do you have suggestions on ways to improve the responsiveness and timeliness of

1. the Department’s mediation services,
2. the Employment Relations Authority or
3. the Employment Court for resolving employment relationship problems?

Question 13:  What are your views on getting a final and binding decision from the Department’s mediation services during mediation?

Question 14:  SMEs can experience greater challenges in resolving workplace problems due to a number of factors, such as a lack of specialist human resources and/ or lack of union presence.

1. Is there more that the Government can do to assist SMEs in resolving employment relationship problems such as personal grievances? What would help?
2. Has the use of trial periods by employers reduced the incidence of personal grievances they have experienced? Please explain.

Question 15:  Should different eligibility rules apply to different types of employees when raising a personal grievance? If yes, can you please describe what these might be? For example:

1. What are your views on limiting the ability of employees earning over a specific salary amount from raising a personal grievance for unjustified dismissal under the Act, e.g. a salary cap?

Question 16:  Do you consider the 90 day limitation period for raising a personal grievance with an employer is adequate and/or appropriate?

1. If not, what would you consider is an adequate and/or appropriate period of time to raising a personal grievance with an employer?

Question 17:  Do you consider the three year limitation period for lodging a personal grievance in the Employment Relations Authority and the Employment Court is appropriate?

1. If not, what would you consider is an appropriate period of time for lodging a personal grievance in the Employment Relations Authority and the Employment Court after it has been raised with the employer?

Question 18:  What are your views on reinstatement as a primary remedy? Are there circumstances in which reinstatement is not appropriate as a primary remedy? If possible, can you tell us about any experiences you have had regarding “reinstatement” as a primary remedy?

Question 19:  Remedies are intended to rebuild productive employment relationships and help people learn from mistakes.

1. What are your views on the effectiveness of current remedies available for personal grievance cases?
2. Do you have any suggestions on how to improve the current range of remedies available for personal grievance cases?

Question 20:  What changes to the current employment relations legislation would make the most difference to productivity in your workplace? Why?

Question 21:  If some areas of the current personal grievance system were to change, what would be the three main areas you would like to change? If possible, can you provide examples of the change you would like to see?

Question 22:  Do you have any other further comments that you would like to raise on issues or proposals for improvements to the current personal grievance system that have not been discussed above?

Part D: Assistance to resolve problems at an early stage

Question 23:  In what ways could mediation be made more flexible to suit the needs of the parties?

Question 24:  In what way could mediation services be adapted to meet your needs when working with specific groups?

Question 25: Would you use mediation services in relation to health and safety matters? 

Question 26: To what extent would you support the mediation services applying a systemic approach to problem resolution in your workplace by identifying trends, providing feedback and options for addressing issues?

Question 27: If Department of Labour were to provide new mediation services, what could these services be?

1. How helpful would these services be?
2. Can you think of other ways in which mediation services could provide organisations with help to prevent and resolve problems in the workplace?

Question 28: What are your views on early intervention mediation services?

Question 29: Would you use an online employment problem resolution tool if this were available? 

Question 30: What other services would be helpful to you in avoiding
and/or resolving employment relationship problems at an early stage?