Hardwork toget justice
Got a problem with your boss, been sacked unfairly, or wages left unpaid? Be prepared for a long wait for justice, writes Steve Kilgallon.
Lawyers and advocates say the Employment Relations Authority, meant to dispense quick justice in employeremployee disputes, is creaking under the strain of Covid-related issues.
The ERA, the first legal stop for resolving employment disputes, has a huge case backlog: its review officers have 659 cases on their books, and about another 280 are waiting just to be assigned.
The ERA is a legal body with powers to order that employees be reinstated or compensated and employers fined if complaints are upheld. But experienced lawyers and advocates are telling their clients it will take a year from their case being allocated to securing a result – and that’s usually already up to a year from when the grievance was first raised.
ERA chief Andrew Dallas refused to talk to Stuff, but provided a version of a letter being sent widely to those working in the system, which candidly admits to the backlog.
In the letter, versions of which have been sent since at least February, Dallas says he’s hiring three new authority members, whose role is to investigate and decide on employment disputes.
It may not be enough. Stuff spoke to several lawyers and advocates who say the ERA is in terrible shape.
‘‘This system is completely broken,’’ says Sunny Sehgal, a workers’ advocate who says he has six cases involving exploited migrant workers awaiting fixtures, the oldest of which he filed in 2018. ‘‘Justice delayed too long is justice denied.’’
Employment law barrister David Fleming says the delays in the system are ‘‘unacceptably long – and they are getting longer’’. He cannot see the backlog being quickly alleviated, given new cases are being allocated to review officers only when they’ve resolved one in their existing queue.
Dallas’ letter blame the effects of Covid-19. Applications in the upper North Island and South Island rose 25 per cent in the second half of 2020 compared to 2019, which he says ‘‘reflects greater reliance in those regions on the hard-hit international tourism and international education sectors’’.
Dallas acknowledges the ERA has been down on staff since June 2020, although he doesn’t say why. Two new members have been appointed in Auckland, one in Christchurch, and more to come in an as-yetunknown location. ERA officers have issued 129 determinations this year, up to April 7, he says.
Worker advocate Nathan Santesso says an already bad situation was exacerbated by Covid. ‘‘They weren’t prepared for it, and it became a disaster.’’
First, lockdown halted in-person investigation meetings and mediation sessions. Zoom and telephone substitutes, Santesso says, were ‘‘terrible’’. This meant a lower proportion of cases were settled at that stage, rather than clogging up the ERA proper.
And demand was driven up. Lawyer Blair Scotland says in those first few days of lockdown, ‘‘employers did all sorts of rash things without advice, including stopping paying people and making people redundant with no process . . . and in hindsight, no good reason’’.
The snowball effect continued, adds Fleming, because the delays have created their own delays. Of the last 20 decisions published by the ERA, only three were ‘‘substantive’’ – that is, gave a final decision in the case. The rest were interrogatory, or procedural, rulings.
For example, says Fleming, if an employee is petitioning to be reinstated in their job, but they know a decision may take a year, then it’s likely they will seek an order for interim reinstatement. Then, because that decision is publicly available, but the facts are yet to be determined, it’s likely another order will be sought for name suppression. ‘‘It all adds to the costs, and adds to the delays,’’ says Fleming.
The biggest delays are in Auckland, with about 180 cases waiting. Those extended timelines pose various risks for disgruntled employees.
Santesso says it raises the chances of employers liquidating before cases are heard, making enforcing a settlement much harder.
Sehgal says ‘‘unscrupulous employers’’ have learnt to milk the delays, knowing an exploited migrant worker is likely to give up, accept amuch-discounted settlement offer, or leave the country.
Fleming has one such case he filed in November 2020, involving a worker who has since had to leave. There will be a directions conference this week, and it’s likely the case will be heard late this year. With decisions usually averaging about three months (although lawyers say the ERA often fails its statutory obligation to take no longer than three months to deliver), an outcome isn’t expected until in early 2022.
That timeline isn’t unusual: Santesso filed a case last November which is still awaiting allocation.
Cases only reach the waitlist when applicants have lodged a ‘‘Statement of Problem’’ (a detailed outline of their case), the other side has responded, and mediation has been unsuccessful.
Dallas’ letter says some cases on the waitlist ‘‘may not be allocated to amember for several months . . . we appreciate the delay is concerning for all parties and appreciate your ongoing patience’’.
The waiting game
How patiently you must wait for the ERA is illustrated by the case of Tokoroa bottle store worker Satwinder ‘‘Sam’’ Singh.
In June 2020, Stuff first reported claims made by Singh and two other workers of their exploitation by brothers Taranjeet and Jaspreet Singh Janda, who owned Waikato liquor stores, convenience stores and a pub.
Two of the workers have since reached confidential settlements, but Singh was resolutely determined to take his case to the ERA after receiving what he says are derisory offers to settle his $90,000 claim.
Since Singh filed his case on April 28 last year, Stuff’s reporting has been cited by the Medical Officer of Health in successfully opposing the renewal of the liquor licence for the Jandas’ Thirsty Liquor store in Tokoroa. The Jandas have unsuccessfully appealed to the Alcohol Regulatory and Licensing
Authority. They have been told to shut the store by May 13. And Sam Singh still doesn’t have an ERA hearing date.
His advocate, Sunny Sehgal, claims the Jandas have exploited the system. ‘‘Dodgy employers like the one in Satwinder’s case are using this delay as a tool to negotiate, and the workers feel helpless.’’
Scotland says exploitation cases tend to be the most complex and time-consuming. He says another factor in the backlog is the work of an energised Labour Inspectorate, which is bringing more such cases to the ERA.
Singh, meanwhile, says he has been through three mediations. The first, in March 2020, was delayed when Jaspreet Janda’s lawyer said he might have coronavirus. That mediation was unsuccessful, as was another in December. On each occasion, says Singh, he was offered a ‘‘very small amount’’ to settle his $90,000 claim.
‘‘I said I wanted full justice. I want to go through the court.’’ But, he says: ‘‘It should be quicker.’’
Unlike others who become dissuaded, Singh says he will see his case through.
‘‘I am confident ... because I am not really worried about my money. I had the strongest case compared with the others [who settled with the Jandas]. I have got sufficient proof to prove it in court.
‘‘Whenever I see it in themedia, I remember my path and everything hurts me.’’
A broken system
But coronavirus isn’t entirely to blame, says Fleming, who says there is a big structural problem which needs addressing.
He has worked in employment law since the early 2000s and says this is the worst it has been. In the early days, the ERA worked as it was designed to when it was introduced in law in 2000: a simpler, more informal investigative body that produced quick decisions. Both parties then had the backstop of an automatic right of appeal to the Employment Court, which acted like a proper judicial body.
But, Fleming says, ‘‘we now have the worst of both worlds’’. The ERA has become as complicated as a district court hearing, requiring more formal evidence and submissions to be prepared, so clients face the costs and complexity of amulti-day ERA hearing, then the likelihood of doing it all again in the Employment Court.
Fleming says the ERA was designed to replace an Employment Tribunal which had become too slow and too procedural. ‘‘The authority has come to resemble the tribunal it was brought in to replace. There is a real need to reset, and remember what the purpose of it is.’’
Barbara Buckett, principal of Wellington employment law firm Buckett Law, agrees with Fleming, saying the ERA has a ‘‘failure to appreciate it is a low-level body and its processes ought to be free of technicalities’’.
Scotland, however, demurs. He says arguments for overhauling the authority for a quicker, less legalistic body have been around since it began, and such changes risk more challenges to the Employment Court. ‘‘The real danger is that you just transfer the delays, and you get a massive backlog at the Employment Court instead.’’
He’s among those who believe that, with patience, things will improve. Santesso too reckons things are getting better. He was impressed and reassured by Dallas’ letters, saying they were an unprecedented piece of transparency from an organisation not covered by the Official Information Act.
Buckett says she attended a recent conference in which Dallas showed he was aware of the issues and appeared to be addressing them.
The result of the huge backlog may be that, in 2021, more cases are pushed towards mediated settlements before they reach the ERA – something the ERA wants to happen anyway.
Buckett says the backlog has already ‘‘caused fire sales at the mediation level: employees are forced to capitulate, rather thanwait for access to the authority, and employers are capitalising’’.
Santesso says the delays are now part of his ‘‘risk analysis’’ – he talks to clients about the likely timeline, and more are pushed towards settling. ‘‘You don’t want something to drag on and dominate someone’s life.’’ He’s happy if they have a reasonable offer, but he says the uncertainty ‘‘isn’t a good reason to settle – because you can’t trust the system’’.
Fleming adds: ‘‘[Settling at mediation] is not a bad thing. But cases being settled because people are emotionally exhausted and can’t carry on is a barrier to justice.
‘‘Both employers and employees find litigation very stressful. It stops them being able to get on with their lives and with business, so it is a very damaging thing to have thousands of people spending years waiting for their cases to be heard.’’