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RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
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A regression analysis is a statistical technique that can divide the sample of personal grievance outcomes (the 2,208 win-lose outcomes or the 1,420 compensation awards) first according to the variable (type of case, occupation of grievant, and so on) that is statistically most strongly associated with the outcomes. The analysis then goes on to separate each sub-sample created by that first division into still smaller sub-samples according to the variable that is statistically next most stongly associated with the outcomes in each subsample. The process continues until all variables associated with the outcomes have been recognised. I conducted this sort of analysis to try to identify just where representation fits in the hierarchy of factors associated with adjudication outcomes.
In the first analysis, I ran a regression on the sample of 2,208 win-lose outcomes, incorporating in the analysis all of the variables discussed above - nature of the grievance (including reason for dismissal), occupation of the applicant, industry of the respondent employer, geographical Tribunal jurisdiction, and the representation of the two parties. Employer representation showed up as the first variable on which the sample was divided, although it only divided employers who didn't attend the hearing or who self-represented off from all others. It did not distinguish at that level of significance between representation by lawyers and representation by non-lawyers. No other factors came into play for the sub-sample of employers who either did not show up or who self-represented. Of the variables included in the analysis, their very high loss rates (97 percent and 84 percent respectively) were associated only with their decisions either to not defend the case or to represent themselves in adjudication (in addition, of course, to the merits of their cases).
The vast majority of employers were in the third sub-sample of decisions - those arising from adjudications in which the employer party was professionally represented. This subsample of 1,970 decisions was next divided by type of grievance in a manner consistent with our earlier discussion. The sample divided again according to nature of representation only in relatively small sub-samples at the fourth level of analysis, and I won't venture any guesses as to why this was so.
Specifically, applicants dismissed for redundancy and having their claims heard in the Auckland Tribunal (182 of them) were far less likely to have been successful where the respondent employer was represented by a lawyer or where the qualifications of the representative were unknown (combined 56 percent applicant success) than when the respondent employer was known to have been represented by a non-lawyer (86 percent). In another sub-sample of 96 decisions, employee applicants bringing either constructive dismissal claims or grievance claims for other than dismissal (disadvantage, discrimination, harassment or duress) to the Wellington Tribunal were far more likely to be successful if represented by a lawyer (75 percent applicant success) than if represented by a non-lawyer or by a representative whose qualifications were unknown (44 percent).
To bring professional representation into sharper focus, I re-ran the regression exercise but including only the lawyer and non-lawyer advocate representation options. This eliminated the self-representation and non-appearance options and the 'unknown qualifications' category and brought the sample size down to the 1,516 decisions resulting from hearings in which both parties were professionally represented by either a lawyer or lay advocate. The results of this analysis are graphically reproduced in Figure One.
Figure One: Predictors of Grievance Outcomes
| Figure One is too large to display correctly in this window: click here to open a new browser window in which to view it. |
Figure One again shows the nature of the grievance to be the variable most strongly associated with the grievance outcome. Beyond that, representation shows up most strongly as an influential variable in the sub-sample of 295 redundancy dismissals, where respondent employers were twice as likely to have successfully defended a personal grievance if represented by a lawyer (33 percent respondent success rate) than if represented by a non-lawyer (16 percent). For that more successful 'sub-sub-sample' of employers facing redundancy grievances who engaged a lawyer to represent them (209 of the 295 in the sub-sample), those taken before the Wellington or Christchurch (and Dunedin) Tribunals were again twice as likely to have successfully defended the grievance if the applicant employee was represented by a non-lawyer (35 percent respondent success rate) than if the applicant was represented by a lawyer (16 percent). In the Auckland and Hamilton Tribunals it apparently didn't matter.
Finally, the clear pattern of success by representation type noted earlier for the small sub-sample of constructive dismissal and non-dismissal grievances heard in the Wellington Tribunal held up in this more streamlined analysis. Applicant employees in this group were much more likely to have been successful with a lawyer than with a non-lawyer.
None of this is proof absolute of a representation effect. What it does mean is that - whatever the reasons - under the defined circumstances, parties were more or less likely to have been successful depending on their representation choices, and that the fact that that is so is a statistically significant and demonstrable reality, not mere chance.
Finally, I applied the same sort of analysis to compensation outcomes for successful grievants. Non-appearance, and self-representation by either the employer or the employee again show up as prominent variables associated with compensation awards, particularly with the likelihood of compensation over $5,000 being awarded. Limiting the parties' representation options to lawyers and non-lawyer advocates, choice of representation shows up as less strongly associated with compensation outcomes than with win-lose outcomes. Occupation is the key variable on which the sample divides into sub-samples. In the sub-sample that combined managers, administrators, technicians and associate professionals, supervisors, and miscellaneous white collar occupations - a kind of 'managerial and white collar' 'super-sub-sample' that the statistical analysis package grouped together - applicant representation by a lawyer was associated with a significantly higher likelihood of a compensation award over $10,000 (38 percent of applicants) than was representation by a non-lawyer (22 percent of applicants). Otherwise, representation choice did not surface as a variable associated with compensation awards to successful grievants.
| Introduction | |
| The database of decisions | |
| The Tribunal's adjudication workload | |
| Grievance outcomes | |
| Factors associated with Tribunal adjudication outcomes | |
| Does representation make a difference? | |
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Does representation really make a difference? |
| A concluding comment |
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