Personal grievance revamp considered

Extending the 90 day trial period for new workers, changing the rules around when it is fair to sack workers and ensuring better standards of employment advocates are options in a Labour Department discussion paper released by Employment Minister Kate Wilkinson today.

Employees can take personal grievance cases to the Employment Relations Authority (ERA) when they think they have been treated unfairly.

"A number of concerns have been raised about the personal grievance system, including uncertainty about the law and the ability for parties to spin out the legal battle for years," Ms Wilkinson said.

"It is important that perceived and real problems are addressed, while continuing to balance that with maintaining rights in genuine grievance cases."

In suggestions to help small and medium businesses options included extending the 90 day trial for new workers in firms with a small number of employees. It sought feedback on firms with 50 employees or with 20.

Other options included streamlined processes, better information and online tools and a helpline to assist resolving problems before they escalated and manage them once they happened.

In a section about eligibility the options included both extending the 90 day trial period and shortening it for workers wanting to lodge a personal grievance.

Another option was to set a period of time workers had been employed at a company before they could take a case and shortening the amount of time that could pass before a case could be lodged.

The paper raised the idea of changing the current rule around the test of justification, which is set out in employment law.

Under a 2004 change to the Employment Relations Act a decision whether a sacking was justified had to be determined on an objective basis by considering whether the employer had been fair and reasonable. The discussion paper seeks comment on what would be a better test and says the bias is currently in favour of workers.

The following section on access to justice says that people who take cases are generally the ones confident of winning. The paper seeks views on how access can be improved and suggested better access to information as a start.

The paper considered options to regulate costs and remedies available in the authority, remove reinstatement as the primary remedy, provide non-monetary remedies for example offering training, and increased financial penalties.

The paper also looked at ideas like improved advisory services, in-house mediators and education about conflict management.

A range of ways to quicken and improve processes were suggested including reducing time allowed for the investigation meetings and determination of cases by changing authority processes and using technology more, for example video conferencing to avoid delays due to travel.

Ms Wilkinson previously said she was concerned about frivolous cases taking up the ERA's time and advocates who took on cases for no fee, unless they won. The no-fee advocates often managed to get pay outs even if the case did not merit it, she said.

The ERA got 2500 applications a year, with 1000 going to a first stage investigative meeting.

The discussion paper listed options for consideration to improve advocate quality including the idea of regulation which would require advocates to join a recognised professional organisation with set standards and a code of ethics. The body would have the power to impose penalties on incompetent advocates.

Other ideas included publicly listing advocates that were part of a professional organisation; encouraging the sector to develop a rating system, set up a website where people could report incompetent advocates and provide better information about likely costs.

- NZPA