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Personal Grievance Determinations in the Employment Relations Authority |
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RESULTS
Number of determinations and claims
33 Authority determinations were analysed for this report. In total, applicants in the 33 determinations claimed 43 separate personal grievances.
Types of personal grievance claims
Over the research period, the following types of personal grievance claims were considered in Authority determinations:
- unjustified dismissal;
- unjustified disadvantage; and
- sexual harassment.
The most common type of personal grievance claim was an unjustified dismissal, (almost 70% of personal grievance claims). 28% of claims were for an alleged unjustified disadvantage and 2% of claims were for alleged sexual harassment. The most common ground for an unjustified dismissal claim was misconduct (26% of personal grievance claims).
In the 33 determinations, there were 43 separate personal grievance claims. Table 1 examines the 43 alleged personal grievances. For unjustified dismissal claims, the table shows the grounds on which the unjustified dismissal was claimed: constructive dismissal, abandonment, misconduct, poor performance, redundancy, and other.
These figures are comparable to those in the mediation survey. In that survey unjustified dismissal claims (including constructive dismissals) accounted for 63% of claims. (However, it should be noted that this figure does not include claims at the Mediation Service classified as "redundancy" ("redundancy" claims accounted for 13.1% of claims). These redundancy claims may have involved claims that the employee was unjustifiably dismissed on the grounds of redundancy). Therefore, this figure may be conservative.
Table 1: Type of alleged personal grievance (17 July - 18 August 2006)
| Type of personal grievance |
Number |
Percentage |
| Unjustified dismissal - constructive dismissal |
5 |
12% |
| Unjustified dismissal - abandonment |
2 |
5% |
| Unjustified dismissal - misconduct |
11 |
26% |
| Unjustified dismissal - poor performance |
3 |
7% |
| Unjustified dismissal - redundancy |
5 |
12% |
| Unjustified dismissal - other |
4 |
9% |
| UNJUSTIFIED DISMISSAL -SUBTOTAL |
30 |
71% |
| Unjustified disadvantage |
12 |
28% |
| Sexual harassment |
1 |
2% |
| OTHER PERSONAL GRIEVANCES - SUBTOTAL |
|
30% |
| TOTAL NUMBER OF CLAIMS |
43 |
100% |
TOTAL NUMBER OF CLAIMS[9]
Comment
Personal grievance claims can be made on a number of grounds. Possible personal grievance claims are that:[10]
- the employee has been unjustifiably dismissed;
- the employee's employment or condition(s) of employment
has been affected to the employee's disadvantage by some unjustifiable
action by the employer;
- the employee has been discriminated against in their
employment;
- the employee has been sexually harassed in their
employment;
- the employee has been racially harassed in their employment;
and
- the employee has been subjected to duress in their employment
in relation to membership or non-membership of a union or employees
organisation.
The only personal grievances claimed in the Authority during the research period were for unjustified dismissal, unjustified disadvantage, and sexual harassment. In contrast, alleged personal grievances at mediation additionally included discrimination, harassment, and duress.
Representation
97% of employees and 88% of employers had representation at the Employment Relations Authority for personal grievances during the research period.
The number of people who use representatives at the Authority is greater than those who used representation in mediation. This is particularly noticeable with respondents at the mediation service (who tend to be employers). 61% of respondents used a representative at mediation. (89% of applicants used a representative at mediation).
The main type of representative for both employees and employers at the Authority were lawyers. Only a small proportion represented themselves. There was no appearance for the employer in two cases. Figure 2 shows the types of representatives for both employers and employees.
At mediation, for both applicants and respondents, the most common form of representation was also a lawyer.
Figure 2: Type of representation
| |
Employer |
Employee |
| Advocate |
6 |
1 |
| Lawyer |
14 |
21 |
| Self |
2 |
1 |
| Unknown |
9 |
10 |
| |
31 |
33 |
Comment
It is interesting to note the higher level of representation at the Authority. This is consistent with mediation being a lower-level dispute resolution mechanism. However, the level of representation at the Authority is very high, especially given that the Employment Relations Act 2000 states that the Authority is intended to be an investigative rather than a judicial body.
Given that only 2 employers and 1 employee chose not to have any form of representation, it is difficult to make any conclusions about the impact of representation on the outcome of Authority determinations. For this reason, correlation analysis has not been carried out in these areas.
A correlation analysis was undertaken in the Mediation survey to explore whether there were any relationships of significance between the variables. The analysis in the mediation report found there was no significant relationship between whether the applicant was represented and the likelihood of settlement. However, it found there was a significant relationship between the type of representation and the amount of settlement, with applicants represented by a lawyer receiving compensation that was higher than those represented by employment advocates or unions. However, it was noted that the level of settlement was likely to be affected by the level of an applicant's salary or wages.
Capturing this type of information on an on-going basis would provide a better understanding of any impact of representatives on outcomes.
Outcomes: in favour of employer or employee?
Analysis was carried out to establish how many determinations were found in favour of an employee and how many determinations found in favour of employers.[11]
Determinations were considered to be in favour of the employee when:
- all claims made were found in favour of the
employee;
- one of two claims made were found in favour of the employee
(for example, three determinations had claims of an unjustified dismissal and an
unjustified disadvantage, but the Authority only found in favour of the
unjustified disadvantage claim); and
- a non-personal grievance remedy was awarded (for example, in
one case, the Authority found there was an unjustified disadvantage and also a
breach of contract and awarded damages for the breach of contract).
We have separately calculated determinations where employee conduct led to a reduction in final payout.
24% of the 33 cases were held to be in favour of employers, 52% were held to be in favour of employees, and in 24% of cases the Authority found in favour of the employee but either remedies were reduced because of contributory conduct or no remedies were awarded.
Table 2 shows whether individual claims were decided in favour of the employer (35% of the 43 claims) the employee (47% of the 43 claims), or were the claim was decided in favour of employee but contributory conduct meant there was a reduction in remedies (19% of the 43 claims). NB: In two of the contributory conduct cases, no remedies were awarded.
There was also one case where payment of notice was awarded in favour of the employee, but the employee's personal grievance claim was unsuccessful. 40% of the unjustified dismissal claims were decided in favour of the employee, 33% in favour of the employer, and 27% in favour of the employee, but contributory conduct resulted in a reduction of remedies. 58% of the unjustified disadvantage claims were decided in favour of the employee, and 42% in favour of the employer. There is, therefore, not a significant difference in success rates depending on which claim is brought. In any case, the small sample size makes it difficult to come to any real conclusions about the impact of the type of claim on success rates.
Table 2
| Type of Claim |
In favour of Employee |
In favour of Employer |
Contributory conduct meant reduction in remedies |
TOTAL |
| Unjustified dismissal |
12 (40%) |
10 (33%)[12] |
8 (27%) |
30 |
Unjustified
disadvantage |
7 (58%) |
5 (42%) |
0 (0%) |
12 |
| Sexual harassment |
1 (100%) |
0 (0%) |
0 (0%) |
1 |
| TOTAL |
20 (47%) |
15 (35%) |
8 (19%) |
43 Claims |
TOTAL[13]
Comment
It is important to note that only substantive personal grievances were considered in this survey. This means that personal grievance cases which were struck out or dismissed an interim stage of bringing a personal grievance (eg deciding whether a personal grievance was brought within 90 days), for example, have not been included. If these types of cases were included the results may have been quite different.
Length of employment
Length of employment is not routinely recorded in Authority determinations. The statistics in this paper have been produced by capturing start and finish dates where they appear in the determinations. These dates are not completely accurate since the determination will often only record, for example, that the employee started work in January 05 and was dismissed in March 05. From the available data about length of employment before the action giving rise to a personal grievance, the most common length of employment is between 1 and 4 years. This is very similar to that of the Mediation Service. Figure 3 shows only the disputes where length of employment was noted in the determination (30 out of 33 determinations).
Figure 3: Length of Employment
| 0 - 3 months |
3 |
| 4 - 6 months |
1 |
| 7 - 9 months |
3 |
| 10 - 12 months |
2 |
| 1 - 4 years |
12 |
| 5 - 9 years |
3 |
| 10 or more years |
6 |
| Not recorded |
3 |
Table 3 examines length of service by whether the claim was decided in favour of the employer or employee. Where the employee's length of service was less than one year, 92% of claims were found in favour of the employee, and 8% in favour of the employer. Where the employee's length of service was between one and five years, 60% of claims were found in favour of the employee, and 40% in favour of the employer. 50% of claims made when the employee's length of service was over five years were found in favour of the employee. These statistics should be viewed bearing in mind the small sample size.
Table 3
| Length of Service |
In favour of employee |
In favour of employer |
TOTAL |
| Less than 1 year |
11 (92%) |
1 (8%) |
12 |
| 1-5 years |
9 (60%) |
6 (40%) |
15 |
| 5 years + |
6 (50%) |
6 (50%) |
12 |
| Unknown |
2 (50%) |
2 (50%) |
4 |
| TOTAL |
28 |
15 |
43 Claims |
Table 4 shows length of service by the type of claim. The percentage of claims that were unjustified dismissal claims varied across the different length of services. (75% for less than one year, 73% for 1-5 years, 58% for 5+ years). For disadvantage claims, 17% were for less than one year's service, 27% were for 1-5 years and 42% were for 5+ years.
Table 4
| Length of Service |
Dismissal |
Disadvantage |
Sexual Harassment |
TOTAL |
| Less than 1 year |
9 (75%) |
2 (17%) |
1 (8%) |
12 |
| 1-5 years |
11 (73%) |
4 (27%) |
0 (0%) |
15 |
| 5 years + |
7 (58%) |
5 (42%) |
0 (0%) |
12 |
| Unknown |
3 (75%) |
1 (25%) |
0 (0%) |
4 |
| TOTAL |
30 |
12 |
1 |
43 Claims |
Comment
The small sample size precludes strong conclusions, but it is possible there is a tendency for unjustified dismissal to occur earlier in the employment relationship and unjustified disadvantage later.
Remedies awarded by Authority
Under section 123 of the Employment Relations Act, where the Authority determines that an employee has a personal grievance it may award any of a number of remedies, mainly:
- reinstatement;
- reimbursement of lost wages or other money lost by employee as
a result of the personal grievance;
- compensation for humiliation, loss of dignity and injury to
feelings;
- compensation for loss of benefit
The main remedies awarded during the research period were:
compensation for humiliation etc (awarded without any reduction for contributory conduct in 45% of the determinations and awarded in a further 18% of determinations with some reduction for contributory conduct); and
reimbursement of lost wages or other money lost by the employee as a result of the grievance (awarded in 24% of the determinations with no reduction for contributory conduct and awarded in a further 18% of cases with some reduction for contributory conduct).
Reinstatement was awarded in two cases.
In some cases the Authority additionally made awards other than those personal grievance remedies (for example, arrears of wages).
Compensation
Table 5 sets out awards for compensation for humiliation etc awarded under s123(1)(c)(i) of the Employment Relations Act. The most common amount of compensation awarded over the research period was between $2,000 and $4,999 (after taking into account any reductions for contributory conduct). In some of the determinations made during the research period, the Authority found there was a personal grievance but contributory conduct by the employee affected the remedies awarded. (Contributory conduct is where the conduct of the employee contributed towards the situation that gave rise to the personal grievance). Table 5 sets out the compensation awarded to the employee, after taking into account contributory conduct where applicable. Table 6 explains the cases where contributory conduct was taken into account.
Table 5: Compensation for humiliation etc
| Amount |
Number of awards |
Percentage (of awards made for compensation) |
| $1-$499 |
- |
0% |
| $500 - $999 |
- |
0% |
| $1,000-$1,999 |
1 |
5% |
| $2,000 -$4,999 |
9 |
43% |
| $5,000 - $9,999 |
5 |
24% |
| $10,000 -$29,999 |
6 |
29% |
| TOTAL |
21 |
100% |
Compensation for humiliation etc (s123(1)(c)(i) of the Employment Relations Act 2000 (NB: the awards shown take into account any reduction for contributory conduct).
TOTAL[14]
Table 6: Compensation where contributory conduct taken into account
| Amount of contributory conduct |
Amount of compensation awarded before being reduced for contributory conduct |
Amount after contributory conduct |
| 20% |
$3,000 |
$2,400 |
| 20% |
$3,000 |
$2,400 |
| 25% |
$4,000 |
$3,000 |
| 40% |
$10,000 |
$6,000 |
| 50% |
$2,000 |
$1,000 |
| 50% |
$4,000 |
$2,000 |
Compensation awards reduced by contributory conduct
In a further two cases, the Authority found there was 100% contributory conduct. The employees in these determinations were, therefore, awarded no compensation.
Reimbursement of lost wages
Table 7 sets out awards for reimbursement of lost wages made under s123(1)(b) of the Employment Relations Act. This report analyses the length reimbursement of lost wages is awarded for, rather than the actual monetary amount awarded. This is because the monetary amount awarded will depend on the income level of the employee and how much the employee earned over the relevant period.
In some of these cases the reimbursement was reduced because of contributory conduct of the employee. For example, the Authority awarded an employee reimbursement of lost wages for 2 weeks, but found the employee's contributory conduct was 50%, so reduced the remedy of reimbursement of lost wages to be for 1 week only. These cases are detailed in Table 8.
Table 7: Reimbursement of lost wages
| Weeks |
Number |
Percentage of total cases |
| Nil |
2 |
13% |
| 1 - 4 weeks |
4 |
25% |
| 5 - 8 weeks |
2 |
13% |
| 9 - 13 weeks |
6 |
38% |
| 14 - 26 weeks |
0 |
0% |
| 26 - 51 weeks |
0 |
0% |
| 52 weeks + |
1 |
6% |
| Number of weeks not stipulated but monetary amount stated |
1 |
6% |
| TOTAL |
16 |
100% |
Reimbursement of lost wages (s123(1)(b) of the Employment Relations Act 2000 (NB the awards shown take into account any reduction for contributory conduct).
TOTAL[15]
Table 8: Reimbursement of lost wages where contributory conduct taken into account
| Amount of contributory conduct |
Number of weeks reimbursement awarded before being reduced for contributory conduct |
Number of weeks reimbursement awarded after being reduced for contributory conduct |
| 20% |
8 weeks |
6.4 weeks |
| 20% |
8 weeks |
6.4 weeks |
| 25% |
12 weeks |
9 weeks |
| 40% |
20 weeks |
10 weeks |
| 50% |
2 weeks |
1 week |
| 50% |
8 weeks |
4 weeks |
Reimbursement awards reduced by contributory conduct
In a further two cases, the Authority found there was 100% contributory conduct. The employees in these determinations were, therefore, awarded no reimbursement of lost wages.
Costs
Of the personal grievance cases over the research period, 36% of cases (12 out of 33) had costs determined by the Authority (either as part of the substantive determination or in a later separate determination). In one case, the Authority held that costs were to lie where they fell. Table 9 sets out the costs awarded in favour of employees. Table 10 sets out costs awarded in favour of employers. The Authority takes into account the length of the Authority's investigation meeting in each particular case.
If the Authority does not determine costs in the substantive personal grievance, it will reserve costs. The Authority usually encourages parties to discuss and resolve costs between themselves. If they are unable to do so, they will return to the Authority and the Authority will issue costs in a separate determination.
All costs awarded in relation to the personal grievances in the research period were under $5,000.
At mediation, the largest proportion of legal costs were between $1,000 and $2,000. Almost all legal costs agreed were below $5,000.
Table 9: Cases with costs awarded in favour of employee
| Amount |
Length of Authority Investigation Meeting |
| |
<One day |
One day |
Two days |
Three days + |
Number of days not stipulated |
| $0-$999 |
1 |
|
|
|
|
| $1,000 -$1,999 |
2 |
1 |
|
|
|
| $2,000 - $5,000 |
3 |
2 |
|
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|
Table 10: Cases with costs awarded in favour of employer
| Amount |
Length of Authority Investigation Meeting |
| |
<One day |
One day |
Two days |
Three days + |
Number of days not stipulated |
| $0-$999 |
|
|
|
|
|
| $1,000 -$1,999 |
|
|
|
|
|
| $2,000 - $5,000 |
1 |
1 |
|
|
|
In one of the cases where costs were awarded in favour of the employer, the Authority also awarded disbursements of $200.
Other awards
Other awards made by the Authority in respect of the personal grievance cases within the research period are shown in table 11. In two of the cases, reinstatement was awarded. Other non-personal grievance awards were for disbursements, arrears of wages and/or holiday pay, damages for a breach of contract, and payment for a notice period.
Table 11
| Disbursements |
6 |
| Arrears of wages and/or holiday pay |
5 |
| Breach of contract damages |
1 |
| Reinstatement |
2 |
| Notice period |
2 |
In the mediation survey there was some type of financial settlement in about half of the mediations during the research period. 47% of financial settlements were between $2,000 and $5,000.
Comment
Some care must be taken when comparing settlements at mediation and compensation awarded at the Authority. At the Authority a clear distinction is made between the different remedies: eg compensation for humiliation, compensation for lost benefit, and reimbursement of lost wages. It may be that in some mediated settlements, the parties come to an agreement on one global amount that could include compensation for various factors. At the Authority, personal grievance remedies are strictly limited to those prescribed in statute. 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.
Mediation is more flexible and can include anything agreed to by parties. For example, eight mediated settlements included an agreement not to speak ill of each other.
Further research into the costs of dispute resolution may be able to provide more information on this area.
The Department maintains statistics on costs and compensation awarded for personal grievance cases on a six monthly and yearly basis which provide a more accurate indication of volumes of levels awarded. These statistics are available at http://www.ers.govt.nz/publications/ccat.html.
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