Forum outcomes vary in both time and awards
discrimination, or relates to a breach of privacy, they can instead make a claim to the Human Rights Review Tribunal.
But they cannot pursue both options and must make a decision as to which approach is likely to bear more fruit.
In other words, making a complaint to the tribunal shuts the door on the employee pursing a personal grievance in relation to the issues. Likewise, once the employee files proceedings in the ERA, they are stuck with that and cannot then pursue a human rights or privacy claim.
So, which forum is better for employees? Recent evidence is that the awards of compensation are likely to be greater in the tribunal compared to the authority. However, the flipside is that the process generally takes longer and is likely to be more expensive.
In terms of time frames, it can take years for matters to be determined by the tribunal, whereas the authority strives to achieve quick and efficient justice.
The Employment Relations Act was amended recently to require authority members to issue oral determinations immediately at the end of each hearing, wherever possible, and a written determination within three months at most.
Whether it is worth the wait is the question. A couple of recent decisions suggest that it may well be. For example, last month the tribunal awarded the former president of Massey University’s Extramural Students’ Society, Jeannette Chapman, $18,000 compensation after she was humiliated in print and online in the student magazine Massive.
There had been bad blood between Chapman and the society’s vice-president Dave Crampton. After two years and one trespass notice issued against Crampton, Chapman received a written warning letter penned by a number of members of the society executive, setting out rules she was alleged to have broken, as well as negative comments about her.
Chapman later terminated Crampton’s membership of the society, but Crampton had already passed the warning letter to Massive, which went on to write an expose on Crampton’s undignified exit from the society. This resulted in Chapman receiving hate mail from extramural students.
The tribunal found that the disclosure of the letter, which contained personal information about her, interfered with Chapman’s privacy and was in breach of the Privacy Act. The tribunal was satisfied that Chapman had sustained humiliation and reputational damage, and that an award of $18,000 was justified.
This case follows a trend in the tribunal towards making significant awards of compensation. The ball started rolling with a case brought by Karen Hammond against her former employer NZ Credit Union Baywide, where Hammond iced a cake with the words ‘‘NZCU f... you’’. NZCU went to extraordinary lengths to damage her reputation after it discovered the cake through Facebook, and she was awarded $98,000 in compensation.
The compensation landscape changed with that case, and we are now seeing the flow-on.
In comparison, the average compensation awards in the ERA are low – on average, between $3000 and $7000.
The latest statistics reveal that there were only four awards of more than $15,000 in the first half of 2014.
If Chapman had been an employee of the society she could have raised a personal grievance for unjustified disadvantage in the ERA. Taking into account the level of awards in the employment jurisdiction, it seems unlikely that Chapman would have received the same level of compensation if she had chosen that option.
There is a view among many employment lawyers that the awards of remedies in the ERA are too low and there has been some discussion about the need for these to increase in order to make it worthwhile for employees to pursue claims.
In the meantime, however, employees should think carefully about whether they may be better served filing a claim in the tribunal.
Not all employment-related cases will be able to be pursued in this forum but, where they are, the rewards may be greater.