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Understanding the Employment Claim Process

Updated: Feb 21

There are rigid processes associated with raising a claim in employment law. This post aims to generally highlight the process, and it should be read alongside the templates provided on Ashleigh the Associate's main website.


Raising your claim


The first step is to raise your claim with your employer. You can use my template on Ashleigh the Associate.


If you are raising a personal grievance, you have 90 days to raise this with your employer. If your employment has been terminated, the 90 day period will commence on your final day of employment. However, if your claim is an ongoing disadvantage, the 90 day period will commence on the conclusion of that disadvantage. For example, if you have been continuously bullied, the 90 day period will start when you stopped being bullied: perhaps because you resigned, or the bully resigned.


If you are raising a claim for breach of employment standards you have six years to raise this with your employer. This includes claims for:

  • Breach of the Individual Employment Agreement.

  • Breach of the Holidays Act 2003.

  • Breach of the Employment Relations Act 2000.

  • Breach of the Wages Protection Act 1983.

  • Breach of the Minimum Wage Act 1983.

Whichever claim you raise, you must invite your employer to mediation services to seek to resolve the matter informally.


Mediation by Agreement


If your employer agrees to attend mediation, you will need to apply for mediation services. I have provided more information on this on Ashleigh the Associate's main website.


If mediation is successful, you will be required to sign a Record of Settlement. The mediator will discuss this with you.


If mediation is not successful, and you wish to progress your claim, you will need to apply to the Employment Relations Authority. There is a fee of $71.56 associated with this. I have provided a template for this on Ashleigh the Associate's website. Don't worry if your application does not contain every single detail: you will have an opportunity to write your evidence separately.


The other party will have 14 days to respond to your application, and then the matter will likely go on a waitlist. An Authority Officer will contact you to let you know.


Mediation by Direction


If your employer does not agree to attend mediation, and you wish to progress your claim, you will need to apply to the Employment Relations Authority. There is a fee of $71.56 associated with this. I have provided a template for this on Ashleigh the Associate's website. Don't worry if your application does not contain every single detail: you will have an opportunity to write your evidence separately.


The other party will have 14 days to respond to your application, and then it is likely that the matter will be directed to mediation. This means that the parties are required to attend mediation.


If the other party does not engage with the mediation process, and refuses to accept any of the proposed dates provided by mediation services; please contact the Authority Officer who has been handling your case.


If mediation is successful, you will be required to sign a Record of Settlement. The mediator will discuss this with you. The mediator will also contact the Employment Relations Authority to inform them that the matter is closed.


If mediation is not successful, and you wish to progress your claim, you will need to email the Authority Officer who has been handling your case. The matter will likely then be placed on the waitlist.


Case Management Conference


The next time you'll be contacted will be to organise a teleconference with a Member of the Employment Relations Authority and the other party. The Authority Officer will arrange the scheduling of this call. It usually only lasts 15 minutes.


The purpose of this teleconference is to discuss timetabling and other organisational needs. The Member will likely ask:

  • How many witnesses you plan on having.

  • Your available dates for an Investigation Meeting.

  • Your ability to meet due dates for Briefs of Evidence.

  • The Member may also wish to clarify some aspects of your claim. This is not to test your claim, but rather to ensure that the Member understands the basis of your claim.

If you have any needs or requirements, please address these with the Member at the teleconference. This is important if you have a disability which needs accommodations.


Briefs of Evidence


The next step is to write your brief of evidence. This is your story. You should start your story from the beginning, and write as much detail as you can. The more detail you can include, the less you'll be asked at the Investigation Meeting. You will be required to swear or affirm your evidence, and you might be cross-examined on your evidence, so make sure it is absolutely accurate.


You will want to cover the facts surrounding the case, how you felt, as well as any evidence about your attempts to find employment after dismissal. You can attach additional evidence to your brief of evidence.


You may have supporting briefs of evidence from friends, family, and ex-colleagues. Each person who provides a brief of evidence must be prepared to attend the Investigation Meeting in person. Accommodations may be made to have the witness appear by phone; you will need to address this with the Employment Relations Authority.


I suggest that you have at least one person provide evidence on how this has impacted you. You may have a spouse, child, or close friend who can simply verify the hurt and humiliation you suffered.


You will be required to file these with the Employment Relations Authority by the due date. The Authority Officer will provide you with further detail on this.


The other party will then produce their briefs of evidence to the Employment Relations Authority.


You may get an opportunity to provide briefs of evidence in response. If you are provided with this opportunity, make sure you are only responding to points raised in the Respondent's briefs of evidence. For example, you could say: At paragraph 6 of John Smith's evidence, he claims that XYZ. This is not what happened. In fact, ABC ...


You will be required to file these with the Employment Relations Authority by the due date. The Authority Officer will provide you with further detail on this.


Investigation Meeting


The Investigation Meeting is an informal process. It is not like a Court process, and it looks more like a boardroom than a courtroom.


The process is simple:

  • The Applicant's witnesses (including the Applicant) will provide their evidence. The witnesses will first be given the opportunity to add to their evidence. They will then be questioned by the Member, and may be cross-examined by the Respondent.

  • The Respondent's witnesses will provide their evidence: same as the above.

As you will be self-represented, there is no obligation to cross-examine the other party. However, if you wish to do so, remember the following basic rules:

  • Only ask yes or no questions. You can achieve this by formatting your questions in the following way:

Isn't it correct that ...


Wouldn't you agree that ..


In your evidence, you just claimed that you said ABC. However, do you agree that in Document A, you've said XYZ?

  • Only ask questions you know the answer to.

  • Do not ask questions that the Member has already asked questions.

There is plenty of material online if you wish to prepare cross-examination questions. There is an art to cross examination. Remember, you will not get a second opportunity to question a witness.


Once the questioning has completed, the Member may then invite the parties to provide oral submissions, or may ask that written submissions be provided at a later date.


Submissions


You will be self-represented, and there will not be a high threshold required for submissions. However, the purpose is to tell the Member why you believe you have a claim: and to support that belief with evidence.


I recommend that you pre-prepare written submissions, and amend these during the Investigation Meeting so that you can also provide oral submissions at the end. If you have pre-prepared written submissions, you can provide these to the Member to consider (even if they are in draft format, it will assist them in their decision making).



The Decision


Do not expect to receive a decision on the day. The Member may decide that they have enough information to provide an oral decision, but the decision will usually be provided in writing. The Member will have three months to provide you with a written determination.


This will be emailed to you once the determination has been released. You will usually receive this a few days before it is published online.


If you wish to appeal the determination, you only have 28 days to file with the Employment Court.


Conclusion


This is a brief overview of the process, and the process may change from time to time due to the informal nature of employment law proceedings. If you have any questions, please get in touch.




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