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RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
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Adjudication outcomes are, of course, not simply random. Nor would we want them to be. It is to be hoped that the most decisive factors in the outcome of a case are the merits of the case, and there is every reason to believe that that is so. Nonetheless, it is interesting and instructive to do some statistical analysis - from simple frequencies all the way through to sophisticated correlations and regressions - to examine what other factors seem to be associated with adjudication outcomes.
We make a lot of assumptions when we do this sort of analysis, most obviously and importantly the assumption that applicants have equally meritorious cases. For instance, if we compare adjudication outcomes by gender of the applicants or by geographic location of the hearings, we make the assumption that cases brought by male applicants are as meritorious as those brought by female applicants, and that claims heard by the Wellington Tribunal Members are as meritorious as those heard by the Christchurch Tribunal Members. Those assumptions may be correct (as we would instinctively assume across genders, for example), but we can't be certain that they are. For example, applicants of one gender or another may be more inclined than the other to resolve '50-50 cases' in mediation, and if that were the case, the other gender would be taking more marginal cases forward to adjudication. Still, the point is not that we should not do the analysis, but rather that we should recognise the assumptions when we do proceed with the analysis.
Many factors show up as seemingly associated with adjudication outcomes in correlation analysis - that is, analysis that shows whether the strength of the relationship could or could not have occurred by mere chance. The best predictor of outcome tends to be the 'nature of the grievance', if we include within that term not only dismissal versus other bases for grievance claims (disadvantage, discrimination, harassment and duress), but including also the stated reason for dismissal (misconduct, performance, redundancy, and 'other'), and the distinction between constructive and actual dismissals. The win-lose outcomes for these various grievance types are set out in Table Four.
Table Four: Grievance Outcomes by Type of Personal Grievance
Clearly, applicants are most successful with performance and redundancy cases, and least successful in constructive dismissal cases and non-dismissal grievance cases. There could, of course, be many explanations for these patterns. Onus of proof is one obvious difference separating the cases at the two ends of the spectrum. Or some might suggest that there are more pitfalls for the employer in seeking to dismiss employees for poor performance. Others might suggest that employers tend to handle performance cases less well than what are often more straightforward and quicker misconduct dismissals. Redundancy cases, too, might have been seen, at least in the past, to have been legally more complex for the employer than dismissal on some more blameworthy grounds. And one could speculate as to a range of other explanations, but that is well beyond my brief here.
Table Five shows the compensation outcomes for the same categories of grievance types, and again there are patterns apparent. The configuration is at a statistically significant level, although the differences appear less marked than is the case on the win-lose measure of outcomes.
Table Five: Compensation for Humiliation, etc
by Type of Personal Grievance
Other factors that show a correlation with grievance adjudication outcomes include the occupation of the applicant employee and the industrial classification of the respondent employer, although again explanations aren't always self evident. For whatever reason, managers are the occupational group most likely to have been successful in winning their grievance claims in adjudication in the years 1992 through 1997. Marginally over 70 percent of managers won their grievance claims. Perhaps they had better claims, or better representation, or perhaps managers with meritorious claims are less willing to compromise in mediation, preferring to push their claims to adjudication. Or, of course, there may be other explanations. Professionals and agriculture and fishery workers were the occupational groups least likely to have been successful, winning only about 56 percent of the time.
On the industry dimension, grievants in construction, wholesale and retail trade, restaurants and hotels, were most likely to have won their cases, with those in manufacturing and in agriculture and fisheries not far behind. Applicants in utilities, and in mining and quarrying were least likely to have been successful, although the numbers of grievants in those industries taking their cases to adjudication were quite small. Again, there could be a myriad of explanations.
With regards to the other outcome measure, compensation for hurt and humiliation, it has long been speculated that compensation awards in the Tribunal tend to be influenced by the applicant's remuneration level. Whether that is appropriate or not is subject to ongoing debate. Our figures confirm that, rightly or wrongly depending on your point of view, there is a relationship between grievant occupation and compensation awards.
By way of illustration, successful grievants who were managers, administrators, professionals, or supervisors were more likely to have been awarded compensation above $5,000 under the humiliation head than workers in other occupational groups. For managers and administrators, well over 40 percent of successful applicants were awarded compensation of over $5,000, with about 12 percent being awarded over $10,000. At the other end of the spectrum, of agriculture and fishery workers successfully bringing grievance claims, only about 12 percent were awarded compensation above $5,000, and none was awarded over $10,000. It goes almost without saying that occupational patterns to grievance outcomes will also lead indirectly to gender patterns given the gender-occupation configuration of the New Zealand workforce.
On the industry dimension, utilities, business services, and social and personal services were the industries with the highest incidence of awards above $10,000. More generally, compensation patterns by industry were statistically significant but again less dramatic than the patterns on the win-lose dimension.
Space precludes a full examination of all variables associated with personal grievance adjudication outcomes in the Tribunal. However, one that may be of interest to practitioners is the difference by geographical jurisdiction. In this respect, during the years 1992 through 1997, grievants were more likely to have been successful in the Wellington Tribunal (73 percent won) or the Christchurch (including Dunedin) Tribunal (69 percent) than in the Auckland (including Hamilton) Tribunal (59 percent). There were also some patterns apparent in compensation awards with, for example, a somewhat higher percentage of awards over $5,000 in the Wellington Tribunal (36 percent) than in either Christchurch (27 percent) or Auckland (25 percent). Again, there can be many explanations for these differences.
It is unlikely, although not impossible, that criteria and yardsticks adopted by Tribunal Members in different jurisdictions vary a little. It is much more likely that local differences - availability of a qualitative range of advocacy, differences in legal aid policies and availability, inclination to settlement in mediation, perhaps differences in community cultures and values, and income differences, among others - are responsible for different outcome patterns by Tribunal jurisdiction.
| Introduction | |
| The database of decisions | |
| The Tribunal's adjudication workload | |
| Grievance outcomes | |
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Factors associated with Tribunal adjudication outcomes |
| Does representation make a difference? | |
| Does representation really make a difference? | |
| A concluding comment |
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