Disputes ruling may deliver quicker system

By Selwyn Parker

One of the great contradictions in the personal grievance procedures of the Employment Contracts Act is that they are designed to achieve a "speedy resolution".

Nothing could be further from the truth.

It routinely takes three to six months to get to mediation and can often require up to two or three years of to-ing and fro-ing before every avenue of appeal has been exhausted and the issue has finally been laid to rest.

Urgency is hardly built into the existing personal grievance procedures.

The disaffected employee has 90 days to raise a grievance and up to six years, a lifetime in commerce, to proceed to a hearing.

Generally, it must be said, the aggrieved party does try to settle the dispute a little before the six years are up.

A long-awaited solution to this pedestrian process may, however, be at hand following a ruling of the Employment Court.

In Tutty versus A.C Blackmore, a case significant only for the clothes it put on this issue, the court provided some important guidelines on a device called an alternative dispute resolution, known to lawyers as an ADR.

Employment lawyers have been waiting for these very guidelines for nearly 10 years.

An ADR clause is designed to settle grievances quickly and without reference to the Employment Tribunal or the Employment Court.

It is not, however, a means of sidestepping the Employment Contracts Act, because an ADR must still fulfil certain core requirements of the act.

That's the theory.

Although it has been theoretically possible to insert an ADR in an employment contract since the Employment Contracts Act became law in 1991, nobody really knew what an ADR meant, let alone the extent to which one was enforceable, because the original definition was too narrow.

Without getting too legalistic, now we do, thanks to Tutty versus A.C Blackmore, and the way is open to speed things up.

Briefly, an ADR must "contemplate a fair and just resolution of the dispute or grievance", explains Jo Copeland, an employment specialist with Bell Gully.

It should also set out the steps in resolving the dispute and shouldn't cost too much.

An ADR's inherent speed should have attractions for both parties.

Rights of appeal can be excluded. The dispute can be settled in an informal, low-level forum where the mediator can be unilaterally appointed by either party (no foot-dragging). And a time-limit of six weeks can be fixed for raising the grievance.

"If employers start using ADR procedures, disputes and grievances will be resolved much faster than they are now," says Copeland.

"I also think that because of the guidelines which allow employers to make employees pay a bond to show good faith, the number of frivolous claims will be reduced."

Copeland expects that the increased use of ADR clauses will reduce the grievance logjam in the employment courts, which has to be good.

Long-running, sagas of litigation over employment disputes are surely corrosive for both parties.