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EXECUTIVE SUMMARY
This report analyses the characteristics of personal grievances determined by the Employment Relations Authority. The characteristics considered in this report include the type of personal grievance claimed, length of service, representation of parties before the Authority, outcomes of determinations, and awards made by the Authority.
This report is based on 33 determinations[1] about personal grievances issued during the five weeks between 17 July and 18 August 2006. In one determination there were two applicants. In a number of cases more than one personal grievance was claimed (for example an unjustified dismissal and unjustified disadvantage claimed). In total, applicants in the 33 determinations claimed 43 separate personal grievances.
Because this report is based on determinations from a limited timeframe, the results in the report are indicative of that selection of determinations only and not necessarily representative of personal grievance determinations in the Authority in general. In particular, the total number of determinations is small and it would be unwise to make sweeping generalisations. The Department will review the usefulness and feasibility of broader research into Authority determinations, including linking to Court challenges.
In analysing whether a determination or claim was determined in favour of the employer or employee, determinations were considered to be in favour of the employee when they had all claims found in favour of them, when they had one of two claims found in favour of them, and when they had non-personal grievance remedies awarded. We have separately calculated determinations where employee conduct led to a reduction in final payout.[2]
The main findings from the personal grievance determinations analysed during the research period were:
- Types of personal grievance claims: The most common
type of personal grievance claimed was an unjustified dismissal claim.
Unjustified dismissal was also the most common personal grievance claimed at
Mediation.
- Representation: 97% of employees and 88% of employers
had representation when they appeared before the Authority. The most common type
of representation for both parties was a lawyer. Lawyers were also the most
common type of representation at Mediation. However, the level of representation
was lower at Mediation: 89% for applicants (usually employees) and 61% for
respondents (usually employers).
- Length of employment: The most common length of
employment before the action giving rise to the personal grievance occurred was
between one and four years. This is similar to the findings in the mediation
survey.
- Outcome of determinations: 52% of determinations found
in favour of the employee, 24% found in favour of the employer, and 24% found in
favour of the employee but either no remedies were awarded or remedies were
reduced because of contributory conduct. These figures need to be considered in
light of the fact only substantive personal grievances were considered in this
survey, so for example, personal grievance cases which were struck out or
dismissed at an interim stage have not been included.
- Compensation awarded: Compensation was awarded without
any reduction for contributory conduct in 45% of the determinations.
Compensation was awarded in a further 18% of the determinations with some
reduction for contributory conduct. The most common amount of compensation
awarded (taking reductions for contributory conduct into account) was between
$2,000 and $5,000.
- Reimbursement awarded: Reimbursement of lost wages was
awarded in 24% of the determinations without any reduction for contributory
conduct. In a further 18% of cases, reimbursement of lost wages was awarded with
some reduction for contributory conduct. Reimbursement of lost wages varied up
to 52 weeks.
- Costs were awarded in 36% of cases, varying in amounts
up to $5,000.
- Remedies awarded by the Authority can be contrasted
with the most common financial settlement in mediation, which is between $2,000
and $5,000. The comparison between monies awarded in the Authority and
settlements in Mediation is limited by the fact that it is not known what the
financial settlement in mediation comprised of and there is flexibility in what
can be agreed between parties at mediation, while the Authority is bound by
statute when awarding personal grievance remedies. Also, half of the
reimbursement awards made by the Authority refer only to the number of weeks
reimbursement was awarded for (not the wage amount). Therefore, total monetary
amounts for monies awarded are not available for all personal grievance
determinations in the Authority.
Figure 1 shows the progress of employment disputes through the institutions during the research period.[3]
Figure 1
During the research period, the survey indicated that in about half of the employment disputes mediated by the mediation service an agreement was reached that included some financial settlement. In the other half of the mediations there was with either no settlement, partial settlement or it was not clear at the end of the mediation whether a settlement would be reached[4].
In the research period, there were 33 determinations and 43 separate personal grievance claims in those determinations. In 52% of the cases, the employee was awarded compensation, reimbursement of lost wages, or another monetary amount, without any reduction for contributory conduct. In a further 18% of cases, the employee was awarded remedies, but with some reduction for contributory conduct. In 30% of determinations, either the employer was successful or there were no remedies awarded[5].
INTRODUCTION AND OBJECTIVES
Introduction
This report aims to provide the Department of Labour with an initial understanding of the characteristics of Employment Relations Authority determinations involving personal grievances. This report also compares findings from the analysis of Authority determinations with the findings of the Mediation Survey.[6]
Objective
The overall objective of this research is to provide a better understanding of the characteristics of determinations issued by the Authority involving personal grievances claims and the variables that may influence determinations such as the impact of representatives, the type of claim and the length of employment.
Method
The method used for this research was to analyse all determinations concerning personal grievances made by the Employment Relations Authority for period 17 July - 18 August 2006 ("the research period"). This is the same period as for the mediation survey.
The Department's legal researchers provided Workplace Policy with all the determinations issued by the Employment Relations Authority for the specified period. Information from all determinations concerning personal grievances made during the research period was entered into an Access database.
Only determinations related to substantive personal grievances have been included. This means that determinations involving disputes, consent orders, compliance orders, or practice and procedure issues have not been included. Also, cases where an employee had brought a personal grievance but the Authority was determining a preliminary issue, rather than a substantive personal grievance, have not been included. For example, cases involving an interim reinstatement claim, the issue of whether a personal grievance was brought within 90 days, or the issue of whether the Authority had jurisdiction to hear the personal grievance (eg whether there was accord and satisfaction) were excluded.
Costs awarded have been included where they were determined as part of the substantive personal grievance determination, as well as where they were decided later as a separate determination.[7]
A total of 33 determinations,[8] and 43 separate personal grievance claims were analysed. (Some cases had more than one personal grievance claim, for example a claim for unjustified dismissal and unjustified disadvantage).
Limitations
Authority determinations do not necessarily include all the information captured by the mediation survey. Authority determinations routinely include information such as representatives, but generally only contain what the Authority considers necessary to make the determination (for example, determinations do not necessarily record the age or ethnicity of applicants or how many employees are in the employer's organisation). Therefore, there are some areas where we do not have data to compare with outcomes reached at mediation.
The research period was only five weeks. This length of time provides only a snapshot of the type of personal grievances and outcomes reached in the Authority. It would be ideal to capture this information on an on-going basis so that more comprehensive analysis can be carried out.
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