Oral Determinations (Decisions), Oral Indications and Consent Determinations
A recent change to the Employment Relations Act states that the Employment Relations Authority must make oral decisions on the day, where practicable, instead of issuing a written decision sometime after the ‘hearing’. Oral decisions on the day are consistent with the intention that the Employment Relations Authority is less formal and less expensive than going to a court.
While speed and efficiency in the decision-making process are positive things to strive for, too great an emphasis on speed and efficiency could result in oral decisions that are not sufficient considered or properly reasoned. A careless decision would do little to improve justice and would be likely to increase the number of appeals.
At a recent New Zealand Law Society Employment Law Conference, a paper was presented about trends in the Employment Relations Authority. Recent statistics show that oral determinations comprise only a small percentage of the Authority’s decisions. An Authority member observed that since the requirement to consider issuing an immediate oral decision, he has personally increased the speed at which he delivers determinations. He noted that, since the changes, 44% of his decisions (‘determinations’) have been delivered within a day of the Investigation Meeting (the ‘hearing’). He is optimistic that with the passage of time, the percentage of oral decisions will increase.
The Authority is receiving more requests (from parties whose cases are heading to a ‘hearing’) for an Oral Indication. This is a preliminary indication by an Authority member, to the parties, about the direction the Authority thinks the case is headed.
There is also an increase in the proportion of cases where the parties reach agreement during the actual ‘hearing’ and ask the Authority to issue a Consent Determination.
The number of individuals representing themselves in the Employment Authority (i.e. without a lawyer or advocate) is steadily increasing. Approximately 25% of applicants to the Authority represent themselves. There is no data for respondents (usually the employer) who represent themselves.
It is perfectly OK to represent yourself in the Authority because the Authority is meant to be less formal and more accessible than a traditional court. The Authority provides resources that can help the self-represented litigant. For example, this paper
by the previous Chief of the Authority.
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