How do I sort out a dispute I have with my employer?
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If you have a dispute with your employer, it’s worth trying to resolve it between you through informal discussion. If this is not working, you and your employer should use the disputes resolution process that is stated in your employment agreement.
Either party can seek mediation to help them come to an agreement. Most employment disputes are settled in the mediation phase.
If mediation is unsuccessful, you can apply to the Employment Relations Authority ERA who will investigate and make a decision.
If either party is unhappy with the ERA’s decision, they can apply to the Employment Court.
My employer has asked me to attend a disciplinary meeting. What does this mean?
If someone has made an allegation of misconduct or poor performance against you, your employer may organise a disciplinary meeting. At the meeting the employer will explain what the allegation is and any evidence that there is to support it, and you will have the opportunity to respond to the allegation by giving your side of the story.
The employer must give you written notice of the meeting, and it should state:
- that it is a disciplinary meeting
- where and when the meeting is to take place
- what allegations have been made against you
- what the possible outcomes are of the meeting
- that you are entitled to bring a support person to the meeting
If you belong to a union it is well worth contacting them as soon as you receive the notice. They can provide advice to help you prepare for the meeting and may be able to help you find a suitable support person.
You have the right to ask to reschedule the meeting if you or your support person are unable to attend at the date and time stated in the notice.
Your support person’s role may include some or all of the following:
- Provide you with moral support
- Represent you and advocate for you at the meeting (where it would be good to have someone knowledgeable about your employment rights, eg an employment lawyer or union delegate)
- Provide advice and support before the meeting
- Take notes about who is present at the meeting, what is said and by whom (this can include a recording of the meeting).
If you believe your employer does not have a good reason for taking disciplinary action or that the disciplinary process your employer followed was not fair, you could consider raising a personal grievance.
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Who can provide support to me if I have an employment dispute with my employer?
If you want to pursue any of these options then your local Citizens Advice Bureau can help.
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How can the Ministry of Business, Innovation and Employment (MBIE) help with an employment relationship problem?
MBIE advises both employees and employers about their rights and obligations. You can call their Labour Contact Centre on 0800 20 90 20 during business hours.
They provide a free mediation service to help employers and employees come to an agreement if they have a dispute. If the parties reach an agreement through mediation and sign it, it will be legally binding. (Cases of serious or intentional breaches of the employment standards will be dealt with by the Employment Relations Authority or Employment Court rather than through mediation.)
You can contact MBIE if you need to speak to a Labour Inspector about whether your minimum employment rights have been breached.
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What happens during mediation?
If there is a dispute which the employer and employee can't sort out themselves then mediation is commonly the next step. The Ministry of Business, Innovation and Employment (MBIE) provides a free mediation service.
Any information exchanged during mediation is confidential and can’t be repeated to an outside party or another employment institution eg the Employment Relations Authority or Employment Court (unless both parties agree to it or the mediation was part of bargaining for a collective agreement). This means that mediation is a useful place for you to talk through the issues that exist between you and your employer.
The mediator will ensure that the process goes as smoothly as possible. However, participation in mediation is voluntary so if you are not happy with how mediation is going, you do not have to continue with it.
It is up to the parties to agree to settle the dispute by way of a settlement agreement – neither the mediator nor your employer can force you to agree to anything.
If an agreement is reached between both parties, the decision will be signed by all parties and this will be legally binding. Alternatively, both parties can ask the mediator to make a recommendation (which, if both parties agree to it, will be legally binding) or to make a binding decision.
If mediation is not successful, going to the Employment Relations Authority may be the next step (see the next question).
More information about MBIE’s mediation services is on their website.
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What is the Employment Relations Authority?
The Employment Relations Authority (ERA) is the next step in resolving an employment dispute if mediation doesn’t work. The ERA is an independent body set up to investigate workplace disputes.
The ERA may refer both parties for further mediation if it thinks this will be helpful. Both parties can jointly decide to go back to mediation after the ERA has got involved.
Once you have lodged an application with the ERA there will be an investigation meeting where both sides can put forward their case. After this meeting, the ERA will make a decision based on the merits of the case. After this meeting (which is like a court hearing), the ERA will make a decision based on the merits of the case, and issue the decision in writing.
It will cost around $70 to make an application, plus a meeting fee if it is longer than one day. You can choose to have a lawyer represent you at the hearing (if you can’t afford a lawyer you may be eligible for legal aid), or represent yourself.
For more information see the ERA website.
If either party is unhappy with the determination of the Employment Relations Authority, they are entitled to take their case to the Employment Court. Note that an application to the Employment Court must be made within 28 days of the Employment Relations Authority's determination regarding the case.
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What happens at the Employment Court?
You can apply to the Employment Court if you are unhappy with the Employment Relations Authority’s (ERA) decision about your case. The ERA may also choose to refer you directly to the Employment Court depending on the situation. The Employment Court has two locations, in Auckland and Wellington, but will sometimes travel to other locations.
The Employment Court will first of all check whether you and the other party have already tried mediation, and consider whether further mediation will help – and may decide to refer you back to mediation. Both parties can also choose to go to mediation after they have started the court process.
You can choose to represent yourself or have a lawyer or other person (e.g. a union representative) represent you at the hearings. The Employment Court recommends that you find someone to represent you who has experience in court and is familiar with employment agreements. You may be eligible for legal aid if you can’t afford a lawyer.
More information about the Employment Court is on the Ministry of Justice website.
If either party is unhappy with the Employment Court’s decision they can apply to the Court of Appeal and, further, the Supreme Court.
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When should I contact a labour inspector and how can they help?
Labour inspectors make sure that employers operate within the law in relation to things like minimum wages, wage deductions, parental leave, and holiday pay. They can investigate complaints about breaches of minimum employment rights, help employers with systems that will help them comply with their obligations, and take action to enforce minimum standards through the Employment Relations Authority.
If you are receiving less than your legal minimum entitlements then ideally, you should discuss this with your employer first to give them a chance to put things right. You might find one of the letter templates on the Community Law website useful for this. If this discussion gets you nowhere then you can contact a labour inspector who can investigate the matter. You can contact a Labour Inspector by calling MBIE’s Labour Contact Centre on 0800 20 90 20.