CULTURA Y CONCEPTOS GENERALES
1.2 HUMANIDAD
1.2.3. El Hombre como Resumen del Mundo
In 1991, as noted earlier, Parliament accepted that recourse to the common law provided insufficient protection and was a cumbersome option.432 Consequently, specialist
429 Harema v Tai Tokerau Corporation Ltd, unreported, Colgan J, 24 November 1995, ACE 124/95.
430 An alternative cause of action would be to seek an injunction for specific performance of the contract;
however, the common law courts have been reluctant to impose this type of remedy. See McGivern v Watercare Services Ltd [1993] 2 ERNZ 724 and Cox v PAE New Zealand Ltd, unreported, Goddard CJ, 26 March 1997, WEC 13/97.
431 Employment Contracts Act 1991, s 40(1).
432 R Ryan and P Walsh, „Common Law v Labour Law: The New Zealand Debate‟ (1993) AJLL 230.
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institutions were retained, with the creation of an Employment Tribunal433 and the establishment of an Employment Court as a court of record.434
The Employment Tribunal operated from three offices: Auckland, Wellington and Christchurch, and serviced Hamilton and Dunedin.435 The Hamilton and Dunedin areas became independent jurisdictional areas in 1996/97 and from that time operated from offices located in both centres.436 If personal grievances occurred outside main city-centres, often employment tribunal adjudicators would travel to a regional centre to conduct personal grievances. For example, a problem which occurred on the West Coast of the South Island could have resulted in an employment tribunal adjudicator travelling to Greymouth to hear the case. Likewise a personal grievance arising in Nelson or Blenheim would result in an adjudicator travelling there to hear the case. This requirement for employment tribunal adjudicators to travel means that the findings in this research cover the whole of New Zealand, and are not limited to main cosmopolitan centres. In the final year of the Employment Contracts Act 1991, there was a total of 27 adjudicators/mediators. All adjudicators had a warrant to both mediate and adjudicate.
433 Employment Contracts Act 1991, s 77.
434 Ibid, s 103. See also B Robertson, „The Arguments for a Specialist Employment Court in New Zealand‟, (1996) 21 NZJIR 34; L Skiffington, „The Role of Specialist Legal Institutions in Bargaining under the Employment Contracts Act 1991: Saboteurs or Saviours?‟ (1996) 21; NZJIR 49; G Anderson, „The Specialist Institutions: The Employment Court and the Employment Tribunal‟ (1996) 21 NZJIR 1; and J Hughes, „The Employment Tribunal and the Employment Court‟ (1991) 16 NZJIR 175.
435 Employment Tribunal Regulations 1991, SR 1991/227/sch 1.
436 Personal correspondence with Alastair Dumbleton, Chief of the Employment Tribunal, 17 September 2004.
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However, if an Employment Tribunal member performed mediation in one particular case, they were not permitted to subsequently perform adjudication in the same case.437
There were 13 Employment Tribunal members in Auckland, one in Hamilton, seven in Wellington, four in Christchurch and two in Dunedin.438 If a personal grievance occurred outside these districts, hearings could be held in other areas, for example, Timaru, Greymouth or Rotorua.
A study by McAndrew found that over 40 percent of Employment Tribunal adjudications involved „substantive‟ issues. Most cases related to dismissals. In 64.3 percent of personal grievance claims, applicants obtained some positive result. He found only 57 applicants represented themselves from a total of 2208. Consequently, the cost of representation was a significant issue.439
The Department of Labour, in a December 1999 briefing to Ministers, indicated that it was anticipated that the optimal time for dispute resolution would be two to three months.
However, the reality was that waiting times significantly exceeded this estimate. In regional areas, waiting times for resolution of personal grievances could be 8–16 months
437 Employment Contracts Act 1991, s 81(5).
438 Letter from Alastair Dumbleton, Chief of the Employment Tribunal, 16 April 1998.
439 I McAndrew, „Adjudication in the Employment Tribunal: Some Facts and Figures on Caseload and Representation‟ (1999) 24 NZJIR 365.
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for mediation, and 11–22 months for adjudication.440 McAndrew noted that officials contended that national reductions in waiting time could be expected, but not consistently across the country. Employment Tribunal members believed that the reason for the considerable waiting time was due to the backlog of personal grievances from previous legislation.441
However, Employment Tribunal members suggested it would have been reasonable to expect that by 1999, the backlog of outstanding personal grievances created under previous legislation would have been resolved. They indicated the issue may have been one of funding for the Tribunal‟s services or due to an increased level of work resulting from increased jurisdiction.442
Roth suggested the procedure was more accessible than prior to the Employment Contracts Act 1991, but resolution of personal grievance complaints was not as expeditious as the Minister of Labour had intended. He noted that it was not unusual for several years to pass between the occurrence of a personal grievance and its resolution.443
440 Department of Labour, Briefing to Ministers of Accident Insurance, Immigration, Labour, and Social Services and Employment (1999).
441 I McAndrew, „Adjudication in the Employment Tribunal: Some Facts and Figures on Caseload and Representation‟ (1999) 24(3) NZJIR 365.
442 Telephone interview, Dr Ian McAndrew, 5 July 2001, Walter Grills and Fiona McMorran, 2 July 2001 (Employment Tribunal members).
443 J Hughes, P Roth, G Anderson (eds) Personal Grievances (1999) 2.16. See also „The Issues Paper on Personal Grievances‟ Minister of Labour, Undated, for a discussion on the Coalition Government‟s perspective on delay, and further discussion by Chief Judge Goddard, „The Issues Paper on Personal
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This was in stark contrast to the express intention of Parliament, when introducing the Employment Contracts Act 1991, to make the resolution of personal grievances, quick, easy and inexpensive444 and the legislative object of the Employment Tribunal to provide
„a speedy, fair and just resolution of differences between the parties.‟445
2.6 S UMMARY
Chapter Two has identified the development of law in New Zealand in relation to personal grievances. It was necessary to outline the historical devel opment of the legal framework in order to analyse the progression of the procedures and how they worked to determine whether adjudication or an alternative process is the most appropriate way to resolve personal grievances.
The first law which established a conciliation and arbitration process for dealing with collective disputes was passed in 1894 by the Industrial Conciliation and Arbitration Act.446 This legislation established industrial awards and agreements to protect the collective interests of employees and established a procedure for the creation and resolution of any disputes in relation to the negotiation and enforcement of awards
Grievances‟ (1997) 8 ELB 133 and J Hughes, „The Issues Paper on Personal Grievances‟ (1997) 8
Employment Law Bulletin 133–152.
444 (1991) 524 NZPD 1437.
445 Employment Contracts Act 1991, s 76(c). See A Dumbleton, „The Employment Tribunal – Four Years On‟ (1996) 21 NZJIR 21.
446 For a more detailed discussion on this topic, see n 4.
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and agreements.447 The 1894 legislation remained in force largely intact until 1954, when a consolidated statue was passed.448 At this time, the only legal remedy available to dismissed employees was through the common law courts.
The Industrial Relations Act 1973, for the first time, gave employees the right to take a personal grievance for unjustifiable dismissal without the necessity of accessing the common law courts.449
The passage of the Labour Relations Act 1987 established a mediation service and created Grievance Committees with equal numbers of representatives from employers and employees in an attempt to resolve personal grievances. The act also stated that access to the personal grievance machinery was a benefit only available to union members.450
Concurrently with the Industrial Relations Act 1973, employees in the state sector had their conditions of employment and personal grievance procedures catered for by the State Services Act 1962.451 However, the passage of the State Sector Act 1988
447 For a more detailed discussion on this topic, see n 7.
448 See n 18 and 19.
449 See n 38 for the establishment of a legal process in relation to the definition and resolution of personal grievances.
450 See n 60.
451 See n 74.
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amalgamated both the private and public sector systems for resolution of personal grievances.452
These processes stayed in force until the passage of the Employment Contracts Act 1991 by the National Government. For the first time, this legislation gave access to personal grievances to all employees irrespective of union membership.453 This was an innovation strongly promoted by the National government of the day.454
Personal grievances as defined in Section 27(1) of the Employment Contracts Act 1991455 remained largely unchanged from the definition contained in the Labour Relations Act 1987. However, new institutions were established to assist with the resolution of personal grievances and different procedures were formulated. For example, there were tighter requirements for lodging a personal grievance and restrictions on the timeframe within which a personal grievance had to be lodged.456 Mediation was an option for resolving personal grievances, however, this was no longer compulsory under the new Act.457
452 See n 76.
453 See n 82.
454 Ibid.
455 See Section 2.3.3 above.
456 See n 188, 189 and 196.
457 See n 240.
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The procedure for lodging and responding to a claim of personal grievance was set out in the Employment Tribunal Regulations 1991.458 The process for lodging and amending claims of personal grievance was prescriptive and could only be amended by the adjudicator if a claim had been made under the wrong part of the legislation.459 On application by the parties, the Employment Tribunal could inform of its intention to adjudicate a personal grievance.460 Under Section 88(7) of the Employment Contracts Act 1991, the adjudication hearings were a court of record and details of the procedure were set out by Regulation 49(1) of the Employment Tribunal Regulations 1991.
The hearing procedure itself contained in the Employment Tribunal Regulations 1991 was formal in nature and quite complex in its operation. Together with its adjudication function, the Employment Tribunal had the authority to award costs against the losing party. Alternatively, the Tribunal could allow costs to lie where they fell. A further factor to be considered when evaluating costs was the potential impact of legal aid. For example, costs could not be awarded against a legally-aided client unless exceptional circumstances existed, which could have meant potential difficulties for a party whose case was found to be successful by the Employment Tribunal.461
458 See n 258
459 See n 259 and 260 for discussion on amendments to statement of claim.
460 See n 296.
461 See n 298.
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If parties were dissatisfied with the outcome of a personal grievance, they had the right to appeal to the Employment Court but only on questions of law.462 Significantly, it was not possible to introduce new evidence on appeal that had not been previously considered by the Employment Tribunal during adjudication.463 The provision for the Employment Tribunal to award remedies in personal grievance cases was found in Sections 40, 41 and 42 of the Employment Contracts Act 1991.464 Notably, whilst reinstatement was available, it was no longer the primary remedy as had been the case under the Labour Relations Act 1987.465 A further consideration which had to be made by the Employment Tribunal when assessing remedies was the impact of contributory actions by the employee to the situation complained of.466 Under some circumstances an employee had the choice of either taking a personal grievance under the Employment Contracts Act 1991 or, to make a complaint to the Human Rights Commission under the Human Rights Act 1993. The choice of procedure was only available under limited circumstances, for instance, complaints of sexual harassment or discrimination. However, claims of discrimination could also include dismissal as an employee may have been dismissed on discriminatory
462 See n 312 and 313.
463 The introduction of new evidence on appeal was not possible under Section 95(4) of the Employment Contracts Act 1991.
464 The details of available remedies are detailed in n 314.
465 For further discussion on reinstatement see n 352 to 356 and accompanying text.
466 See n 364 and 365.
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grounds.467 Once the employee had chosen which procedure to use, they were unable to revert to the other option.468
When considering whether the retention of a specialist employment jurisdiction was desirable or reliance on the common law courts as an alternative, the National Party decided retaining the specialist jurisdiction was the more appropriate option.469 To determine whether or not the adjudication system worked, it was necessary to devise a structure for analysis encompassing the framework within which the system operated, the opinions of adjudicators, and the experiences of participants who used adjudication in 1997.
How the personal grievance adjudication system and its availability developed is important to determine the issues which arose from the changes created by government. As the National Party had claimed that they wished to create an easy, cheap and fair process, it was necessary to examine whether this had been achieved through analysis of the following three factors:
a) Coverage of the Personal Grievance Procedure
With the passage of the Employment Contacts Act 1991, all employees were entitled to take a personal grievance on the grounds of unjustifiable dismissal or unjustified action by an employer. Prior to this legislation, only those employees
467 See n 386 to 388.
468 See n 388 and 389.
469 See n 432, 433 and 434.
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who had their terms of employment contained in an award or agreement had access to this process. All other employees were required to take such complaints to the common law courts. This also meant that for the first time, senior level employees had access to the same procedure as more junior staff members.
Broadening access to the personal grievance procedure, could however , have caused problems with access to adjudication as a considerably larger number of employees for the first time had access to it. This could have resulted in substantial waiting times for claims to be heard and resolved.
b) Representation
For the first time, access to the personal grievance procedure was no longer restricted to union members unless exceptional circumstances existed, as had been the case under preceding legislation. Consequently, many employees chose not to be represented by a union, but instead to use the services of either counsel or an advocate. This could have created problems as employment law had previously not been considered by legal representatives to be lucrative. As a result, many new counsel and advocates began to practice in the employment law area with little knowledge or experience in the discipline.
Those who chose to represent themselves were also likely to cause difficulties for the adjudication system. They were unlikely to have the necessary skills for presenting their own case, or, for examining or cross-examining witnesses. It was
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therefore likely that adjudicators would have been called upon to assist self -resented parties when required.
c) The Adjudication Process
The adjudication process was complex and formal. The hearing environment resembled a court room with evidence being presented, examined, and cross -examined by the parties. While was some flexibility for adjudicators to amend this procedure to suit the circumstances of the case, this was infrequently utilised.
There were often substantial delays in the allocation of hearing dates, and there were often delays in adjudication decisions being presented by adjudicators.
These issues will be discussed and analysed in more detail later.
My previous experience in working both as a union industrial officer and organiser and public service solicitor who was partly responsible for the drafting of the personal grievance procedure provided me with a fair level of insight into potential difficulties with the legislation and its implementation both from the perspective of employees and employers. The knowledge of these potential problems allowed me to analyze the difficulties generated by the structure of the legislation and the procedures contained in it. I was aware for instance, both from a legal perspective and from practical experience, that under the Labour Relations Act 1987 a relatively informal method existed for resolving personal grievances. It therefore appeared a massive jump in principle to create a formal adjudication system which resulted in
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potential difficulties for parties to personal grievances. It does however need to be noted that mediation was an option for resolving personal grievances under the Employment Contracts Act 1991, but it must be emphasised that this was only voluntary, and there was serious potential for mediation to be used as a „fishing expedition‟ rather than a true attempt at dispute resolution.
My background, experience and consequent strong political awareness of the debate between employers, employees and unions enhanced by the extensive propaganda published by representatives from both sides drove me to determine whether or not the employment tribunal adjudication system worked. Due to the formal structured nature of adjudication, a significant issue was to determine whether parties received adequate and affordable representation either through a union, employer‟s representative, or through counsel or advocate. Further significant issues related to the actual cost of taking a personal grievance, the adequacy of remedies granted and costs incurred if a personal grievance was established. These factors assisted me in devising the most suitable research questions to be considered in this thesis, as explained in the following chapters.
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C HAPTER 3
THEEFFECTOFADJUDICATIONUNDERTHEEMPLOYMENTCONTRACTSACT1991
ONACCESSTOJUSTICEANDRELATEDISSUES...113 3.1INTRODUCTION...113 3.2ACCESS TO JUSTICE... 115
3.2.1DEFINITION OF ACCESS TO JUSTICE ...116 3.2.2THE CONTEXT OF ACCESS TO JUSTICE ISSUES UNDER THE EMPLOYMENT CONTRACTS ACT
1991 ...128 3.2.3 ACCESS TO JUSTICE IN THE CONTEXT OF THE PRINCIPLES AND INTENTIONS OF THE
LABOUR RELATIONS ACT 1987 AND THE EMPLOYMENT CONTRACTS ACT 1991 ...133 3.3NATURAL JUSTICE SUMMARISED...138 3.3.1INTRODUCTION ... 138 3.3.2PRINCIPLES OF NATURAL JUSTICE DEFINED ...141 3.3.2(a) Audi alteram partem – the right to a hearing ... 142 3.3.2(b) A fair and neutral determination – the rule against bias ... 147 3.3.3NATURAL JUSTICE IN EMPLOYMENT LAW ...149 3.3.3(a) Natural justice in an employer‟s enquiry ... 151 3.3.3(b) Natural justice in the Employment Tribunal and Employment Court ... 158 3.4SUMMARY...163
113 C h a p t e r 3