More unfair dismissal cases seen by lawyers

Tough economic times are causing a rise in the number of unfair dismissal cases being brought to Otago lawyers for mediation representation, despite the Employment Relations Authority (ERA) recording a decline.

Webb Farry Lawyers partner and employment law specialist John Farrow said he had noticed a gradual increase in the number of employment disputes being brought to him for mediation since the economic recession took hold.

"There seems to be more discontent between employers and employees since the hard economic times kicked in," he said.

"My experience is employers aren't suffering poor performance like they used to.

"Because of tough financial times, there are more employers out there who are proactive in addressing performance issues when they first manifest, rather than letting them lie.

"Some employers have really tried to weather out the recession, but because it has lasted longer than anticipated, there has been more staff restructuring within businesses of late."

Anderson Lloyd employment law specialist Barry Dorking said he, also, had not noticed a decline in disputes.

Employment disputes came in waves from different sectors of the workforce, he said.

One month, there might be a spate of disputes from the retail business sector, the next month it could be from the industrial sector.

At present, Mr Dorking said he was busy with an increase in the number of disputes between school principals and boards of trustees.

However, the number of unfair dismissal cases brought to the ERA appears to be declining after reaching a peak in 2010.

Department of Labour figures show the number of cases brought to the ERA's Christchurch jurisdiction (South Island) had increased from 67 in 2007 to 109 in 2010, but then dropped to 79 in 2011.

The number of cases won by employees dropped to a five-year low, with 39 cases concluded in favour of the employee.

The trend was similar nationwide. Cases brought to the ERA in 2010 totalled 364, dropping to 303 in 2011.

Of those, the number of employees winning disputes dropped from 181 in 2010 to 145 in 2011 - also a five-year low.

The authority noted the figures were a count of determinations made by the ERA, and excluded matters where an unfair dismissal had been the subject of a mediation that had not been escalated to the ERA.

The Department of Labour does not collect figures by region. Rather, they are collected according to jurisdictions - Auckland, Wellington or Christchurch.

Mr Farrow said he was surprised to see the numbers declining.

Employment disputes initially went through a mediation process, and if mediation was unsuccessful, they were referred to the Employment Relations Authority, he said.

He believed the drop in ERA cases might have been caused by improvements to the mediation process.

University of Otago Department of Management negotiation, mediation and dispute resolution lecturer Associate Prof Dr Ian McAndrew said the skill of mediators meant about 85% of disputes were resolved in the mediation process.

The cost of taking a case to the ERA might also be a factor in the decline because it discouraged many from pursuing employment disputes.

He said taking cases to the ERA had gradually become a more formal process, and there was an increasing need for people to have legal counsel.

"As things became more formal and legalistic, it began to cost more.

"It discourages people who don't have a lot of resources.

"If they have lost their job and they don't have a lot of money, they have to think about whether they want to take their case to the ERA level."



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