Mediation Service and ERA Process Streamlined

Recommendations by a Mediator or Authority Member

Department mediators and members of the Employment Relations Authority now have the power to make written recommendations to the parties at the mutual, written request of the parties. The mediator will be able to give a view on the merits of each party's position while they still have the opportunity to resolve the issue themselves. The recommendation will be about how the problem is solved.

If a recommendation is sought the Parties must agree in writing to a mediator's recommendation and that recommendation will be full final and enforceable under section 149 unless one or both parties notify the mediator they do not accept the recommendation by an agreed date.
The same process applies to recommendations from an Authority member.
The parties have time to consider whether or not to accept the recommendation. The onus, therefore, will be on the parties to say whether they accept or reject the recommendation. If one or both parties do not accept it, the mediation or Authority investigation may continue. Either party can request a different mediator continue the mediation or a different Authority member continue the investigation.

Frivolous Claims.

The Employment Relations Authority is now empowered to throw out frivolous or vexatious claims.

Justification Test

Changes to the legal tests applied in grievance cases now make it easier for the employers if the dispute reaches the Employment Relations Authority, or the Court.

The test of justification is the test applied in assessing the fairness of an employer's actions usually in relation to a dismissal or other disciplinary action. The Employment Relations Authority or Court must consider the following directives when making a decision as to whether or not the actions of the employer were what a fair and reasonable employer could have done in all the circumstances. This is a change to the Act which previously required that the Authority or Court must consider what a fair and reasonable employer would have done.
The Authority or Court must consider whether the employer:

• having regard to the resources available, sufficiently investigated the allegations against the employee
• raised his or her concerns with the employee
• gave the employee a reasonable opportunity to respond to those concerns
• genuinely considered the employee's explanation (if any) in relation to the allegations.

Other factors may be taken into account by the Authority or the Court.
The change recognises that there is a range of fair and reasonable responses that could be made by an employer when considering a dismissal or other actions.
The law also makes clear that an employer's action cannot be viewed as unjustified solely because of mistakes made in the process, if those mistakes were minor, and they did not result the employee being treated unfairly.

Reinstatement
From 1 April 2011 reinstatement will no longer be the primary remedy. However reinstatement may be used as a discretionary remedy where practicable and reasonable.