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MUST READ: The risks of progressing a claim

There are risk of progressing a claim at the Employment Relations Authority: and this is something you must be aware of before commencing the process.


If you progress your claim to the Employment Relations Authority, and you are unsuccessful, you will be required to contribute towards your employers legal fees. The starting point for this is $4,500 for the first day, and $3,500 for every day thereafter.


It is also true that if your claim is heart at the Employment Relations Authority, it will likely be made public on the Employment NZ website.


Lawyers will attempt to use this to scare you; and while this is a real risk, I wanted to provide some information on the practical realities of progressing a claim in the employment jurisdiction.


There are virtually no risks until you get to the ERA


This is a very important point: there are virtually no financial risks until you actually get to the Employment Relations Authority. If you've read my blog about the employment law process, you'll know that the very last step is the Investigation Meeting at the Employment Relations Authority.


This means that you can progress your claim to mediation without any financial risks; irrespective of whether you were required to apply to the Employment Relations Authority to be rediverted to mediation.


This is a powerful thing to know. The statistics show that 80% of claims will resolve at mediation, which means there is a good chance that your claim will resolve at mediation. However, it is also empowering to know that you do not need to progress past mediation. If you are concerned about the costs of progressing, you can simply withdraw your case after mediation.


This withdrawal doesn't have to be permanent. You have three years to progress a personal grievance after you have raised it. This means that you could withdraw your claim for the time being, but you may wish to continue when you are in a better financial position.


In fact, I think that mediation can be a helpful way for you to understand whether it's worthwhile progressing your claim. The mediators at MBIE can assist you in understanding your claim and your risks, and many will help you go through a pro/con analysis. This part of the process is absolutely free, and it is invaluable in my opinion.


Publication


The biggest fear with publication is that a future employer would read your determination on the internet, and irrespective of whether you are successful, determine you are a trouble maker. This is a significant reality, and many applicants before the Employment Relations Authority have struggled to find employment.


I need to be straight up: Most cases will be published. However, if you believe you have good grounds for non-publication, you may make a request to the Employment Relations Authority that either your name, or the names of both parties, be removed from publication.

There is a high threshold with this; so don't get your hopes up. However, if there are genuine concerns for your safety, your health and wellbeing, or your privacy; then non-publication may be granted.


The Employment Relations Authority could also choose not to publish certain facts. For example, if you disclose that you had become suicidal as a result of the trauma experienced in your workplace; the Employment Relations Authority may not publish this information.


It is possible to progress to the non-publication application stage, and then withdraw if you are not granted non-publication. This is a preliminary matter that is often heard well in advance of the Investigation Meeting.


Mitigating costs


If you are unsuccessful at the Employment Relations Authority, you will be provided an opportunity to give submissions on the matter of costs. This means you will be given the opportunity to write to the Employment Relations Authority, arguing why you shouldn't be required to pay the full contribution to costs (the starting point being $4,500 for the first day, and $3,500 for every day thereafter).


While it is true that costs generally follow the event, you can make the following arguments (in accordance with the principles from the Employment Court case PBO Limited (Formerly Rush Security Limited) v Da Cruz:

  • The Employment Relations Authority has the discretion to determine whether costs should be awarded and what amount.

  • The discretion is to be exercised in accordance with principle and not arbitrary.

  • The Employment Relations Authority must consider its obligations to equity and good conscious.

  • Costs are not to be used as a punishment or as an expression of disapproval of the unsuccessful party's conduct.

  • The Employment Relations Authority can consider whether the other party's costs were unnecessary or unreasonable.

In some cases, it has been beneficial for the employee to argue that they do not have the financial means to pay a costs award. You will need to provide evidence of your financial status, and you may want to propose to the Employment Relations Authority that a payment plan be implemented.


It will also be beneficial to highlight that you are self-represented, and shouldn't be unjustly disadvantaged by your limited means to seek legal assistance. The other party were aware that you are self-represented, and they had the opportunity to progress matters with limited representation: thereby reducing their own costs.


If costs are a genuine concern, and you meet the threshold for legal aid, you may want to consider progressing to mediation by yourself; and then seeking the assistance of a legal aid representative. One option is Ashleigh the Advocate.


Conclusion


There are risks associated with progressing a claim at the Employment Relations Authority: but don't be dissuaded. You can progress to mediation with very little risk, where you will be able to seek the assistance from a knowledgeable employment mediator from MBIE.


It's worth a shot.


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