Submission on the Review of Part 9 (Personal Grievances) of the Employment Relations Act

Posted By TEU on Mar 31, 2010 |


Submission” of the” Tertiary Education Union (TEU) Te HautūKahurangi o Aotearoa to the” Workplace Policy Group – Department of Labour on the” Review of Part 9 (Personal Grievances) of the Employment Relations Act 2000

31 March 2010

For further information please contact:

Irena Brorens

National Industrial Officer

Tertiary Education Union

Te HautūKahurangi o Aotearoa

Review of Part 9 (Personal Grievances) of the Employment Relations Act 2000

Introduction

The Tertiary Education Union (TEU) Te HautūKahurangi o Aotearoa is the largest tertiary sector union in this country.”  Our membership currently sits at approximately 10,500 members, covering all types of TEOs in the sector.

A significant amount of the work we do with members involves advocating on their behalf during personal grievance processes.”  Our experience of the current system is that in general it provides a low-cost and effective process for the resolution of this type of employment relationship problem.”  Therefore the TEU does not support major changes to the current system, particularly where these may lead to reductions in an employee’s right to be treated fairly in their employment, and the necessity for employers to maintain good staffing and employment practices.

The current process for any employee wishing to challenge a dismissal or any aspect of it is restricted to having the matter heard in the Employment Authority.”  This rule in its statutory context precludes any common law action for damages and also severely limits the right to bring a judicial review within the public sector.”  Furthermore, there is no right to strike in relation to a dismissal, so any restriction on the eligibility to raise a personal grievance would deprive some employees of any remedy at all, or unjustly limit access to justice and remedies so as to breach New Zealand’s international obligations.”  We are concerned that some of the recommendations outlined in this review mean it may result in changes that make it more difficult for employees to raise a personal grievance, particularly for those working in SME (which in our sector equates to those staff working in private training establishments).”  Specifically the consultation document has included an option of extending the 90-day probationary period for new employees in small businesses, and broadening its scope to medium-sized businesses.

We have not seen any evidence that indicates a change to the 90-day probationary period has increased employment or assisted employers in SMEs to better manage employment obligations.”  In fact our peak body, the Council of Trade Unions has instead noted that the only outcome of any significance has been a group of (largely young) employees unjustly treated through this provision.”  We do not believe that extending the range of this provision as a means of addressing supposed deficiencies in the personal grievance system will provide any positive outcomes, either for employers or employees.”  It will simply disguise any problems in a business or organisation and will add nothing to government goals of increasing productivity and prioritising skill development.”  These goals cannot be achieved if a large part of the workforce is effectively disposable and unprotected in the early days of employment.”  Therefore we would be very opposed to seeing this option included in any future change to legislation relating to personal grievances, or the processes associated with this.

Further, any removal or restriction on employees considering taking a personal grievance, or depriving some employees access to justice and remedies simply on the basis of the size of their workplace is a serious breach of New Zealand’s international obligations.”  If recommendations such as extending the 90-day probation period are implemented as part of this review, the government will be in further breach of both the UN Declaration of Human Rights and ILO Convention 158, which outline rights and protections (in this instance) to be afforded to workers.

Some adjustments to the current process for personal grievances may be warranted, particularly in the areas of greater investment in training and resources for employers.”  Any such adjustments can be made without fundamentally changing the essence of the current legislation which seeks to provide a balance between employee rights to a “fair deal” and an employer’s need to manage their business effectively.

Review Response Form

Part 9 of the Employment Relations Act 2000: Personal Grievances

Personal / organisational information

1.”  Your full name: Irena Brorens”  – National Industrial Officer

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2.”  Name of your business or organisation (if applicable): The Tertiary Education Union (TEU) Te HautūKahurangi o Aotearoa

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3.”  Postal address: P.O Box 11-767 Wellington

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4.”  Email address: http://scr.im/irenabrorens

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5.”  Telephone number(s): 09-8158029/027-4442893

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6.”  Relevant activities you or your business/organisation are involved with.

We are a union and professional association which covers academic and general staff in the tertiary education sector.

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7.”  Size of business/organisation: Approximately 10,500 FTE members

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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)?

Yes

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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.

Via the Council of Trade Unions and a direct email from the Department of Labour.

Part C:”  Operation of the Personal Grievance System

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

a)” ” ” ” ” ” ” ”  If so, when was your most recent experience of a personal grievance?

b)” ” ” ” ” ” ” ”  Were you an employee, employer, a representative for an employee or employer, or involved in some other capacity in the personal grievance process?

c)” ” ” ” ” ” ” ”  How many personal grievances have you been involved in?

The TEU is involved in personal grievances on a daily basis , as a major part of the work of all our organising staff

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?)

The TEU is involved at all levels, i.e. Mediation Services, the Employment Relations Authority and the Employment Court.”  Some of the cases that TEU has been involved in recently have covered areas such as unfair selection of employees for redundancy, lack of redeployment opportunitiesm and unfair disciplinary process.”  These have all been resolved with the assistance of the Mediation Service.

Question 3: Costs in regards to employers:

a)” ” ” ” ” ” ” ”  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?

b)” ” ” ” ” ” ” ”  In your experience are these costs higher or lower than other civil or legal disputes?

c)” ” ” ” ” ” ” ”  If you think costs for resolving a personal grievance are not reasonable, what would be a reasonable cost?

Costs in regards to both employers and employees:

d)” ” ” ” ” ” ” ”  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?

e)” ” ” ” ” ” ” ”  Do you have any suggestions for how the cost of either defending or raising a personal grievance can be reduced?

f)” ” ” ” ” ” ” ”  Are there any other comments you would like to make in regards to costs, financial or otherwise?

The personal grievance system is designed to resolve matter at the lowest level and with the least cost for all parties.”  Unions play a vital role in ensuring that many employment relationship problems/personal grievances are resolved well before they are filed for any mediation assistance.”  Of course this is not the case in many non union workplaces and this normally leads to these employees seeking help for lawyers, therefore the costs are higher for them.

It is TEU’s view that rather than there being an issue of high cost for representation, the main issue is low levels for settlement for resolving personal grievances, at around $5000 to $6000, which is seen by most union members as very little compensation for the loss of their employment and psychological strain on them and their families.

As indicated in our opening comments the current employment relations framework provides the right to take a personal grievance which is linked with giving up the right to strike over any personal grievance.

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

a)” ” ” ” ” ” ” ”  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?

b)” ” ” ” ” ” ” ”  What was your experience of the representative in relation to

i) process

ii) outcome and

iii) cost?

All members of the TEU are represented by union advocates (organisers) and our lawyers.

All our union advocates are experienced in their roles”  and the mediation process.

Where the issue is not resolved at a lower level (Mediation Services), costs can increase.”  However as we noted in the introduction to our submission, TEU’s view is that this kind of escalation could be reduced with additional training/resources being available to employers and employees.”  For our members, the issue of cost is irrelevant as expenses are met by the union via membership fees.

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?

TEU does not have any concerns about the quality or representation in personal grievance cases.

Question 6:

a)” ” ” ” ” ” ” ”  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?

b)” ” ” ” ” ” ” ”  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?

The TEU believes that the personal grievance system does provide a fair balance for the parties involved.”  The current system requires both parties to attempt to settle the issue at a lower level.”  Additionally both parties are required to follow a clear process for resolving the issue, and a number of options exist to reach a settlement of the issues (i.e. financial remuneration does not have to be the sole remedy).”  The system also puts the onus on employers to ensure they understand good employment practice, in much the same way as they should have a good understanding of health and safety regulations, the taxation system etc.

Question 7:

a)” ” ” ” ” ” ” ”  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?

b)” ” ” ” ” ” ” ”  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:

i) what are your views on whether sufficient or too much emphasis is given to process rather than substance in a case?

ii) do you think minor irregularities in process should be given less emphasis than the actual substance of the personal grievance claim?

c)” ” ” ” ”  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?

Our view is that the personal grievance system is not overly complex or difficult to understand.”  It is designed to be open and flexible in assisting the parties to find a resolution. ” Section 101 states the objective is, “to recognise that, in resolving employment relationship problems, access to both information and mediation services is more important than adherence to rigid formal procedures”.

The test of justification is completely valid and does not require any change.”  The current legislation does not assign relative weight to process over substance; it merely provides a process to ensure that it is assessed.

It is a fundamental right of any dispute that it proceeds in accordance with natural justice – being the right to be told of a concern, to respond and to have a response considered, to be given a chance to improve and to representation.

Much of the rhetoric around arguments to reduce protections from unfair treatment is based around the notion that the law is too complex particularly for small businesses and organisations.”  The evidence does not support this however, with many small and medium size employers (SMEs) clearly employing and managing staff successfully.”  This”  level of success shows that the law is straight forward and the requirement to comply with it is no more or less arduous than any other regulatory and legal requirements a business or organisation may need to understand in order to function successfully.

Being a good employer is a fundamental success factor of any business or organisation.”  Having legal requirements around the employment of staff encourages businesses and organisations to think about these issues and to seek training and obtain advice in this area.

Allowing a different set of practices to apply for small-medium sized businesses or organisations (such as is proposed in the review document) is in our view a violation of international conventions, as well as being unfair to workers in these workplaces and in the long term detrimental to our economy.”  Our economy will not thrive unless our all our businesses and organisations are competent in all the areas that are required for successful operation – including management of staff and understanding of good employment practice.

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

a)” ” ” ” ” ” ” ”  What are the barriers to raising a personal grievance case?

b)” ” ” ” ” ” ” ”  Are there greater barriers faced by particular groups? For example: women, youth, migrants, part time or casual employees?

One of the main concerns that our members face is the fear of subsequent poor treatment by their employers when they wish to raise a personal grievance, which is not about a dismissal.”  This is particularly the case for fixed term and casual employees (also often women), of which the tertiary sector has a large numbers. However, all the groups identified in the question – women, young employees, migrants, ethnic minorities are generally more vulnerable in their employment situations, so any changes to the current system may create further issues for them.

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

TEU does not see any significant barriers that would require legislative change in terms of defending a personal grievance case.”  We have noted issues such as cost, level of settlement etc that could be addressed, however we believe this could be simply addressed through policy change and provision of resources rather than legislative change.

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

More opportunities for employers to upskill in regards to good employment practice. ” Greater numbers of individual workers joining unions would address the problem of cost of raising a case for non-unionised workers.”  Broader publicity for workers about their rights at work.

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

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

The TEU experiences some delays when the employer parties have not responded to a personal grievance raised.”  This is a concern for our union members who wish to resolve their grievance in a timely manner.”  Another area that causes delays is lack of employer knowledge about the personal grievance/mediation process, which sometimes then leads to lawyers being engaged, meaning a greater costs to employers than might be necessary if human resources advisors or in some parts of our sector – private training providers – had a greater understanding of the processes involved in resolving these issues.

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

a) ” ” ” ” ” ” ”  the Department’s mediation services,

b) ” ” ” ” ” ” ”  the Employment Relations Authority or

c) ” ” ” ” ” ” ”  the Employment Court for resolving employment relationship problems?

We have experienced time delays for regional areas for all of the services.”  It is the TEU’s view that the employment of more mediators and appointments of authority members would greatly assist in time frame issues that have occurred.”  Giving power to the Mediation Services to order parties to attend any mediations would alaso assist.

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

If the parties see that this would be fair decision then this could be a positive outcome and reduce the cost for all parties.”  However, in some cases it would be a concern if it prohibited the parties moving a serious case to the Employment Authority.

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.

a)” ” ” ” ” ” ” ”  Is there more that the Government can do to assist SMEs in resolving employment relationship problems such as personal grievances? What would help?

b)” ” ” ” ” ” ” ”  Has the use of trial periods by employers reduced the incidence of personal grievances they have experienced? Please explain.

As we noted above, increased availability of online resources and help lines would assist.”  The Department could also consider a system of employment advisors for businesses and organisations which employers could subscribe to annually for a small fee – the purpose of this would be to provide a low-cost and neutral service for smaller businesses and organisations.

As we noted in our introduction, there is no evidence to suggest that probationary periods have had any positive effect on personal grievance figures, business and organisation success, or employment figures.”  Additionally as we noted above, this provision violates international conventions on human rights and employment rights.

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:

a)” ” ” ” ” ” ” ”  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?

TEU does not support any limitation on employees raising a personal grievance as it is a fundamental principle of natural justice.”  This would go against the rights of all employees having the right to a fair and unjustified process for any dismissal.

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

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

Yes, this is supported and it allows time for those affected to process the issues or in some cases resolve the issue, prior to raising a formal personal grievance

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?

a)” ” ” ” ”  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?

The three year limitation is entirely fair and any attempts to shorten it will potentially deny resolutions of legitimate personal grievances.”  It is noted that in criminal cases the limitation is six years.

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?

TEU supports the continuation of reinstatement being the primary remedy.”  It ensures that if an employee wishes to return to their employment after an unjustified dismissal, they have a legally constituted opportunity to continue in their position and rebuild the employment relationship.”  The key here is retaining the right to argue for reinstatement.”  Obviously if either party thinks it is untenable for the employee to return to work, there must still be the ability to consider other options.

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

a)” ” ” ” ” ” ” ”  What are your views on the effectiveness of current remedies available for personal grievance cases?

b)” ” ” ” ” ” ” ”  Do you have any suggestions on how to improve the current range of remedies available for personal grievance cases?

As above the primary remedy of reinstatement is fundamental to achieve a fair and just outcome. ” All of the remedies listed in s123 of the ERA offer an effective range of remedies to settle a person grievance.”  However, it is noted that the level of awards for ” compensation for hurt and humiliation and loss of benefits have been at the low end of the scale and this has been seen by union members who have lost their employment as little real compensation for the stress on their families and the psychological strain on themselves.

Possible changes could include consideration of a scale similar in approach to the sentencing rules used for successful prosecutions under the Health and Safety in Employment Act 2002.

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

Removal of the 90-day probationary period would be a good start.”  As we noted above, expanding opportunities for training and skills development in employment relations is likely to be the most effective means of addressing issues related to raising personal grievances.”  If this happened, the number of PGs being raised should reduce, thus dealing with employer and employee concerns about cost etc.”  This does not require legislative change however.

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?

Increase number of mediators and more availability in the regional areas.

Encourage the Mediation Service to requires employers participation in mediation

An increase in the levels of compensation for hurt and humiliation under s123.

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?

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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?

Having mediations occur at the worksite as describe in s144 and s145 has been a positive experience and this should be offered as a matter of course when filing for mediations.

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

Combined union and human resources information and training sessions where there has been an identified trend in personal grievances being lodged.

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

The TEU would support the creation of a new personal grievance right to deal with resolving many issues of health and safety at a lower level.”  Providing for a grievance where an employer has ignored a health and safety issues likely to cause harm would strength the current health and safety legislation.

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?

The TEU would support this service as indicated above but not the expenses of the mediators’ current capacity.

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

a)” ” ” ” ” ” ” ”  How helpful would these services be?

b)” ” ” ” ” ” ” ”  Can you think of other ways in which mediation services could provide organisations with help to prevent and resolve problems in the workplace?

A mediation service publications summarizing outcomes of justified and unjustified personal grievance – this would be a useful guide when determining to proceed with a case.

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

TEU would support the example given in the report “the mediator may undertake a diagnostic assessment to determine the most appropriate response and then facilitate a solution with the team in the workplace” ” This type of exercise has been done by some employers in our sector but by the use of private mediators; it would be a better use of public money to have this service provided by the Mediation Service.

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

An on line too that assists with the process to identify grounds of an employment relationship problem may be a helpful additional resource, but as most of the employment relationship problems are about interpersonal relationships, one of the key aspect of mediation is the personal approach of the mediators and the parties being together to seek resolution.

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

As union delegates and elected officials play a vital role in resolving early stages of any employment relationship problems retaining the current paid education leave within the Employment Relations Act is key to ensure a low cost and effective process, as this provision enables unions to work with members to develop skills that can be used in the workplace to either resolve disputes, or develop awreness about rights and approriate processes.

Conclusion

The current system for addressing personal grievances seeks to balance an employer’s right to manage their business or organisation with an employee’s right to fair treatment and justice.”  The system is not perfect – it can be costly to both employers and employees to defend or take a personal grievance, particularly for employees who are not union members.”  However on balance it works well, providing options for resolving issues at various levels and a range of options for settlement.”  As we noted in our submission, considering changes in some areas such as the scope of work provided by Mediation Services, expanding availability of information and training for employers and employees, and reviewing levels of settlement may be beneficial adjustments for the current system.”  However legislative changes such as extending the 90-day probationary period to try and resolve what are often systemic problems within a business or organisation is not an appropriate response to addressing any issues the current personal grievance system may have.

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