RESEARCH REPORT: DETERMINATIONS OF THE
EMPLOYMENT RELATIONS AUTHORITY
| Volume 27 Number 3 | October 2002 |
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RESEARCH REPORT: DETERMINATIONS OF THE
EMPLOYMENT RELATIONS AUTHORITY
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For the Tribunal sample, adjudicator identity is the first predictor, with Tribunal Members sorted into four distinct groups, with employee win rates of 35 percent, 53 percent, 65 percent, and 77 percent. The groups did not have any evident distinguishing profiles. They each had about the same number of Members; there were male and female Members in each group; and there were lawyers and non-lawyers in each.
As is apparent from the figure, there are secondary predictors associated with the 65 percent and 77 percent groups, but not for the other two groups. For the 65 percent group, employees were far more successful (74 percent) grieving dismissals for "the usual reasons" - misconduct, performance or redundancy - than they were for all other grievance types (55 percent). For the 77 percent group, employee grievants were markedly less often successful (66 percent employee success) when the employer was represented by a lawyer than when the employer was not represented by a lawyer (86 percent employee success).
Turning to Figure Three and the analysis of Authority grievance outcomes, the picture is quite a clear one. The first branching of the tree is again on the basis of employer representation, but this is a bit misleading. In fact all that it says is that the employer will fare much better in the Authority if professionally represented (by either a lawyer or an advocate) than if he or she self-represents or does not front the Authority's investigation meeting at all. The vast majority (86 percent) of the case determinations are in the employer-represented sub-sample, and it is the secondary predictor for that sub-sample that is of most interest.
The secondary predictor is again the identity of the decision maker, which is to say that - while again acknowledging case merits as overwhelmingly the most significant determinant of outcomes - a grievant's likelihood of success depends to an extent on who hears the case. However, whereas the groupings of adjudicators in the Tribunal personal grievance sample carried no branding characteristics that distinguished one group from another - in terms for example of qualifications, background or experience - that is not so here.
In Figure Three, Authority Members can be seen to divide into two groups. In
the first group, employees prevail in two thirds (66 percent) of grievances;
in the second group, employees win just a little more than one third (38 percent)
of grievances. The latter group includes only Members who were long-serving
Members of the Employment Tribunal prior to being appointed to the Authority,
and it includes all but two Wellington Members from that background. The other
group, from whom employees win two out of three grievances, includes all of
the Members newly recruited onto the Authority from outside the Tribunal. The
two groups might seem to be heading in different directions, though it is worth
recalling that, overall, the grievant success rate in the Authority is virtually
identical to that in the Tribunal, suggesting that factors like case allocation
may perhaps be at work behind these figures.
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