Practice note - Steps in Proceedings

Under the Employment Relations Act 2000, (the Act) the Authority is an investigative body whose role is to resolve employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities (see Section 157 of the Act).

Set out below is an outline of the steps that parties before the Authority can expect will generally be taken from the time proceedings are commenced until they are determined.   The steps may change from those described below where necessary to meet differences between individual parties, the nature of their employment relationship problem and any particular requirements for conducting an investigation into the problem.

The purpose of this note is to give employers and employees, unions, representatives, members of the public, and anyone having an interest, a broad outline of how the Authority will conduct investigation meetings and what will usually happen at various stages until any proceedings are determined.   Periodically the Authority will reassess the procedures below and, if necessary, changes to this note will be made.

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1. Proceedings are commenced in accordance with the requirements of the Employment Relations Authority Regulations 2000.  A case is begun by lodging a statement of problem (or statement of matter).  A response is given through a statement in reply.  The forms are available from the Auckland, Wellington or Christchurch offices of the Authority and from the website of the Employment Relations Authority.
2. Authority Support Officers will check to see that the wording and contents of the statement of problem and statement in reply are such as to fully, fairly and
   clearly inform all parties and the Authority.  If not, either by telephone or other convenient method, a Support Officer will seek clarification or any necessary additional information from the author of the statement.
3. Once an Authority member has considered the information provided by the parties in their statements a preliminary case management conference will be held with them or their representatives, if any.  This will be either by telephone, in person, or other convenient means of communication.  The purposes of the case management conference include:
   1. Identifying factual and/or legal issues central to the employment relationship problem and its determination, and if possible agreeing upon the resolution of related non-contentious matters;
   2. Giving the parties an opportunity to identify issues and witnesses they believe are relevant;
   3. Considering the need to formally give orders or make directions, either at the request of any party or by the Authority of its own initiative;
   4. Setting a timetable for necessary steps to be taken by the parties or anyone required to attend before the Authority;
   5. Fixing the date, place and time for a meeting to start the investigation (to be confirmed by written notice);
   6. Outlining how the member intends to conduct the investigation meeting and addressing any concerns regarding the proposed process.
4. Investigation meetings will commence with the Authority member confirming the procedure to be followed in the particular case, including the order in which witnesses are to provide information.  A formal opening is not required from parties.  Information will usually be provided to or obtained by the Authority in the form of sworn or affirmed evidence.  Depending on any directions previously given, a witness may read a prepared statement or give oral evidence.  This evidence may be added to at the request of the party or the party’s representative.  Following this or at any other time the Authority may fully examine the witness.  Cross examination of witnesses by the parties will then be permitted provided that such questions are relevant, necessary, courteous and not repetitive.
5. Further inquiries for the Authority to make in relation to the evidence or anything else of relevance to the investigation may be proposed by the parties or their representatives.  The Authority will consider any such proposals and make such inquiries it thinks necessary.
6. At any time while any case is before the Authority for determination, the parties may be directed to undertake mediation or further mediation (see section 159 of the Act). During the course of the investigation the Authority member may offer the parties the opportunity to consider seeking further mediation or discussing between themselves whether they wish to settle the matter.
7. At any time while any case is before the Authority for determination, the parties may agree in writing to confer on the Authority the power to make a written recommendation in relation to the matters in issue (see Section 173A of the Act)
8. At the close of an investigation meeting parties, or their representatives, may sum-up by making points about the information gathered by the Authority and in doing so may refer to any applicable legal principles.  A citation of any case law should be given where a copy of the decision is not being provided.
9. The determination of the Authority will be in writing, to be issued either in a reserved decision or as a record of an oral decision given at the end of the investigation meeting.  The Authority will aim to issue reserved decisions as soon as practical after the meeting and will endeavor to issue a determination within 6 weeks of the receiving the last information and/or submissions from the parties.
10. The public may attend any investigation meeting unless excluded by order of the Authority.  
11. The Authority’s determinations are generally public documents and, subject to the terms of any non publication order, will be published on the Department of Labour’s Employment Law data base accessible through the Authority website

 

This note replaces that dated 15 February 2010 and is effective from 1 April 2011.

 

 

James Wilson
Chief of Employment Relations Authority

 

30 March 2011