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EMPLOYMENT LAW NEWS
January 2007 Issue No: 10
Happy New Year Everyone
It’s been a while since we sent out a newsletter so now is a good time before the year starts to hot up.
There has been a change in our business since the last newsletter and that is, Wendy has moved on to start a new life in Tauranga.
The name of the company has changed, dropping the name “Stretton” to become “Gary Tayler Ltd” and comprises of myself as principle advocate, Karen as Practice Manager and Jessica as advocate.
Our email addresses have also changed:
Gary’s - This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Karen’s - This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Jessica’s - This e-mail address is being protected from spambots. You need JavaScript enabled to view it
The focus and strategy of the business will remain the same, which is focusing on providing advice to employers on all employment matters, with the emphasis on early intervention so as to keep things on track rather than late intervention (acting as an ambulance at the bottom of the cliff after the problem has escalated).
When necessary, full representation in Mediation Meetings, Employment Relations Authority Investigations andEmployment Court Hearings will be provided.
By contacting us early, the last two institutions have not been needed much because problem solving techniques applied at early intervention level have meant that the genuine problems have been resolved by the parties themselves.
The Mediation Services of the Department of Labour provides the best opportunity for the parties to resolve employment problems and can boast a high level of success.
However I repeat my earlier warning, that if a problem is taken to Mediation which has the risk of ending up in the Authority, then the entire Mediation process is confidential, which means that what is discussed is not able to be put before an Adjudicator later.
The exception to this is when the parties consent to the lifting of the confidentiality provisions, which is rarely explained by the Mediators during the Mediation process, unless the file indicates that it should be.
The latest case that I was involved in involved an employer who, faced with a number of complaints from the employee which it was having difficulty managing, sought the assistance of the Mediation Services and both parties attended unrepresented.
There was an outcome that was put in writing and signed by the parties which involved ongoing employment and a months retraining of the employee.
The employee however never returned to work and 9 months later filed proceedings in the Employment Relations Authority claiming that he was forced to resign because the employer had systematically defrauded him of money owing under his agreement.
The employer argued that the issues raised as the grounds claiming constructive dismissal had been addressed in the Mediation process.
The employee denied that this was so, and refused to agree to waive the confidentiality provisions under the Employment Relations Act 2000 (ERA).
This meant that the Adjudicator could not hear what was discussed at Mediation and was therefore required to resolve the matters by a full investigation.
So the employer had done exactly what the law required by seeking Mediation assistance, had believed that it had achieved a workable outcome from the Mediation, but then 2 years later found itself defending (successfully I add) the same complaints again in the Employment Relations Authority.
The point to all of this is that if you want finality in mediation and don’t want to go through it all again, make sure you are not constrained by confidentiality which stops the Authority from enquiring as to what was discussed at mediation.
Unfortunately there is always going to be the odd ‘no brainer’ case presented to an employer which often does need judicial intervention to have it dismissed, but that I am afraid is a fact of life which must be dealt with.
We are pleased to report that so far every case but one that we have defended in the Authority for an employer, has resulted in a successful outcome for the employer.
The one that was unsuccessful has been appealed to the Employment Court.
At the risk of nagging on, we remind you all that it is a requirement of law that ALL EMPLOYMENT AGREEMENTS MUST BE IN WRITING.
Every employer who fails to provide written agreements, risks penalty actions being brought against them as part of an overall claim that an employee might take.
In my years as a mediator I heard time and time again employee’s representatives using the threat of penalty action in the Authority as a bargaining tool to persuade an employer to agree to the terms of settlement. And a powerful tool it is, considering that the maximum penalty for an individual is $5,000.00 and for a company $10,000.00.
Penalties imposed by the Authority are directed to the Crown’s coffers unless the circumstances dictate that it, or part of it, should go to the employee bringing the case.
But the biggest problem for the employer if a dispute over contractual rights arise, is that it will have to disprove the employees claim rather than the other way around. This is on the basis that an employer should not be entitled to benefit from non compliance with the law. So the Authority Member will say “where is the agreement supporting your defense of the employee’s claim?”
If you find yourself saying “I didn’t give the employee an agreement” then the next request will be “then prove that what the employee is saying, is incorrect.”
It will be at about this time when you feel the walls caving in around you, that you will say to yourself “I read about this in Gary Tayler’s newsletter. Damn….. should have given them a call.”
Our next newsletter will be about amendments to the Holidays Act due to come into effect on the 1st April this year.
Well that’s enough for now. We hope the New Year is good to you all.