Employment lawyer Bridget Smith is nzherald.co.nz's new employment law blogger, taking over from her colleague Greg Cain.
Having lived in Wellington for 10 years, wind is something I feel I know a little about. Those still in Wellington tell me the weather is one thing I shouldn't miss, now that I have become an Aucklander (I'm not going to refer to myself as a 'jaffa').
Beyond its
famous, or arguably infamous howling southerly, Wellington is of course the nation's capital and political centre of the country. It is the place where not just the wind, in a meteorological sense, but also any winds of political change blow from.
Having recently released a discussion paper and called for submission, on possible amendments to the Holidays Act 2003 (in late 2009), the Government has now signalled the possibility for further change, issuing a review of personal grievances under part 9 of the Employment Relations Act 2000.
The discussion paper is divided into eight main areas. Some of the key issues raised for discussion include the cost of problem resolution - Is it too expensive to resolve personal grievances and is this increasing the number of settlements?
Many employers have had plenty to say in the past about personal grievances, the costs and the consequences. Consider some of these issues, which have been raised as part of the submission process:
• Is there a need for some sort of regulation of advocates? Many employers are of the view that without advocates taking cases on a "no win no fee" basis, the number of personal grievances would dramatically reduce;
• Is the balance right in the personal grievance system? - Here the issue is a balance between process and substance. Is there too much of a focus on process, ahead of the substance of the issue?
• Ensuring access to justice - What are the barriers faced by people wanting to raise a personal grievance? Many employers are likely to argue, those barriers are insufficient as the number of personal grievances being raised, remains high. But this begs the question of whether issues are being dealt with fairly;
• Is there a disproportionate impact on SMEs (small/medium sized employers - those with 19 or fewer employees), who have fewer resources at their disposal than their larger counterparts?
• Is the 90 day period for raising a personal grievance the right length? and
• Do the remedies available adequately address the costs incurred (including financial, social and personal costs). It is not uncommon for someone to achieve a decision in their favour, with the overall result being commercially unfavourable.
Labour's employment spokesperson, the Hon Trevor Mallard has been quoted as saying that there is no evidence that the current system is not working and there is no need for change.
What's your view? Is it time for the winds of change to blow?
The discussion paper calls for submissions by 31 March 2010. For those employers and employees not satisfied with the current personal grievance regime, this is a chance to have your say. What will you be saying?
Bridget Smith is an employment lawyer at Minter Ellison Rudd Watts
