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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First, there has been a change in the overall profile of grievants bringing cases for determination by the Authority (versus the Tribunal). Managerial, supervisory, professional, technical and other white collar workers are now 60 percent of grievants in the Authority (versus 47 percent at adjudication in the Tribunal). Correspondingly, pink and blue collar workers are now just 38 percent of grievants in the Authority (versus 53 percent at adjudication in the Tribunal). The big movers in the first group are not the managerial-supervisory types (up only two percentage points), but the professional, technical and white collar workers (up 11 points). Correspondingly, respondent employers - at the Authority level - are increasingly from "white collar industries" such as the financial and business and social services sectors, and much less so than they used to be from the wholesale and retail trade and restaurants and hotels sector.
Second, overall grievant success rate in the Authority is about the same as it was in the Tribunal adjudication jurisdiction (57 - 58 percent), but some specifics have changed. Grievants are more successful in the Authority (versus the Tribunal) where either the grievant is self-representing (win 64 percent in the Authority versus 40 percent in the Tribunal) or the employer is self-representing (win 83 percent in the Authority versus 73 percent in the Tribunal). There is a slight increase in self-representation, particularly among applicants. Winning percentages for the Authority and Tribunal are much closer where the parties both use any representation.
Third, managers, supervisors and administrators are much more successful grievants in the Authority than they were in Tribunal adjudication (70 percent success versus 55 percent) as well as being somewhat more successful than other groups, who all remain in the 50 - 60 percent success range; success rates for all other occupational categories are within seven percentage points up or down between the two institutions. The gap between female grievant success rates (62 percent, up from 60 percent) and male grievant success rates (down from 56 percent to 53 percent) has widened a little in the Authority, relative to the Tribunal.
It is important to note that those figures cited immediately above represent historical patterns, and are not necessarily a reliable basis for forecasting the future. There are, however, some predictors available based on statistical regression analysis.
Fourth, for example, in terms of personal grievance win-loss outcomes in the Authority, the key predictor is Member identity, with Authority Members sorting into two fairly clear camps, with just a little blurring around the edges. Former long-serving Tribunal Members form one group (with the exception of two Wellington Members), from whom grievants win 38 percent of cases. All newly appointed Authority Members are in the other group (along with the two long serving Wellington Tribunal Members and a former, short-term temporary Tribunal member), and from this group grievants win 66 percent of cases.
Fifth, there is some upward movement in wage reimbursement and compensation awards in the Authority versus the Tribunal, primarily more awards in the $5000 - $10000 range (wage awards in this range up from 21 percent to 28 percent; compensation awards up from 16 percent to 26 percent). The upward movement in wage reimbursements may be understated by the figures, given that matters come to determination in the Authority more quickly than was so for the Tribunal.
Nonetheless, remedies awards are still predominantly in the <$5000 range. Wages reimbursement awards in this range are down from 64 percent to 62 percent; compensation awards in this range are down from 75 percent to 69 percent. There has been some reduction in the percentage of successful grievants receiving wage reimbursement awards, which may reflect quicker disposition of cases in the Authority.
Interestingly, while some intuitive factors were seen to be associated with wage reimbursement awards in the Tribunal (occupation and employment status, principally), there were no predictors evident in the Authority wage reimbursement awards. Again, the quicker determinations may be suppressing the influence of those factors in the Authority.
Regarding compensation, Tribunal members sorted into three camps, averaging about $2500, $4500 and $6500 compensation. In the Authority, whether the grievant has a lawyer or not is the only predictor - successful grievants with lawyers averaged compensation of about $6500; those without lawyers about $3500.
Sixth, there is one consistent story on reduction of remedies in the Authority and Tribunal - a successful grievant is most likely to have remedies reduced where the dismissal has been for misconduct. And, as was true in the Tribunal, it remains true in the Authority that the chances for a successful outcome for the grievant are far less (54 percent) where the dismissal has been for misconduct, than when the dismissal has been for one of the other principal reasons - performance or redundancy (both 70 percent). In the Tribunal, there were a minority of members who reduced remedies for contribution in misconduct (and performance) cases three times as often as others did (almost 60 percent versus less than 20 percent). There are no such differences apparent in the Authority to date. Overall, reductions are down from 12 percent of successful grievance cases in the Tribunal to eight percent in the Authority.
Seventh, reinstatement remains only a very occasional remedy in Authority determinations, as do awards of compensation for loss of benefits.
Eighth, there has been a proportionate increase (in the Authority versus the Tribunal) in costs awards to successful grievants of <$500 (from 15 percent to 38 percent), and a considerable reduction in costs awards to employees in the $500-1000 and the $1000-2000 categories (collectively down from 70 percent to 37 percent). This would seem to be consistent with what is a streamlined process, involving shorter hearings and shorter decision documents.
In costs awards to employers, awards of $1-500 and $500-1000 have reduced and awards >$1000 have increased (from 45 percent of awards to 63 percent). It is unclear why this would be so. In sum, in the Authority, successful employees are getting less on costs, while successful employers are getting more on costs.
Finally, one fact that does emerge fairly clearly is that there are differences between decision makers in the exercise of judgments and discretions available to them. This shows up in a variety of ways in a variety of places in both the Tribunal sample and the Authority sample, nowhere more starkly than in the division in the Authority, as a broad generalization with some exceptions, between those Members with a Tribunal background and those without. There can be many explanations for those patterns, including circumstantial factors - such as, perhaps, the greater disposition in some parts of the country than others to "try on" less meritorious cases - and deliberate factors - such as case allocation policies. Finding the explanation is beyond the scope of this research note.
There is no suggestion here that anything other than the merits of cases is the overwhelming factor in the determination of cases in both the Tribunal and the Authority. Beyond that central fact, it is important to recognize that decision makers in our employment institutions are, as they always have been, drawn from an appropriate range of backgrounds, rather than being from a narrow sector of society. That being so, it is unsurprising, and certainly no cause for alarm, that they exercise the discretions available to them around the peripheries of cases in ways that yield a range of different outcomes. Nonetheless, there is a role for research in the future in exploring those patterns more fully.
References
Beck, Kathryn and Ian McAndrew (2002), Decisions and Damages: an analysis of adjudication outcomes in the Employment Tribunal and the Employment Relations Authority. Proceedings of the 2002 NZLS Employment Law Conference: 211-234, Wellington: New Zealand Law Society.
McAndrew, Ian (2001), Adjudication Outcomes in the Employment Tribunal. New Zealand Journal of Industrial Relations, 26(3): 341-348.
McAndrew, Ian (2000), Gender Patterns in Dismissal Adjudications: The Recent New Zealand Experience. International Employment Relations Review, 6(2): 49-63.
McAndrew, Ian, Dermott J. Dowling, and Sean Woodward (1997-98), Gender Patterns in the New Zealand Employment Tribunal: Some Notes on Theory and Research. New Zealand Journal of Industrial Relations, 22(3)/23(1): 277-300.
Morris, Caroline (1996), An Investigation into Gender Bias in the Employment Institutions. New Zealand Journal of Industrial Relations, 21(1): 67-90.
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