If you have a grievance with your employer, and/or elect a representative, you and your representative are lawfully bound to seek to reduce the need for judicial intervention on a without prejudice basis.
Early resolution means that representatives for the employer and the employee can discuss matters confidentially and try to come to a resolution that suits both parties — before matters escalate to the Employment Relations Authority (ERA) or mediation.
Should both parties agree, this can be recorded in a confidential Record of Settlement (ROS) that will be binding on both parties and will ensure both parties can leave the employment relationship on agreed terms.
Working for Workers can assist you in preparing your case and enter into early resolution discussions with your employer and their representative.
"Without prejudice" is terminology commonly used in the context of resolving legal disputes. Statements and admissions marked as "without prejudice" are generally not to be repeated in the courts or any formal process.
This means they are inadmissible as evidence in court or Employment Relations Authority (ERA) proceedings.
The Employment Relations Act 2000 promotes mediation as the primary problem-solving mechanism. Mediation is considered one of the cornerstones of employment relationship problem resolution in Aotearoa New Zealand.
Before any grievance or matter arrives at the Employment Relations Authority (ERA), the Authority will likely send you to mediation.
That being said, sometimes parties to an employment relationship that is in dispute can negotiate on a without prejudice basis, in a confidential manner, and agree to terms to end the relationship safely, in a confidential manner, and without disparagement to both parties.
Working for Workers settles a significant number of issues by way of Record of Settlement (ROS) before the matter goes to mediation or the Employment Relations Authority (ERA).
When parties to an employment relationship problem or employment dispute solve the problem themselves or with the assistance of the mediation service, they can do so safely and effectively using a negotiated Record of Settlement (ROS) pursuant to section 149 of the Employment Relations Act 2000.
Ensure you have a representative who is experienced in this area. The pitfalls of agreeing to certain clauses in these agreements are not often well understood by employers or employees alike — and this can be a real problem for both sides down the track.
Generally speaking, for such a settlement to be binding on parties, the Record of Settlement (ROS) must be signed by a mediator and the safest way to ensure this is done is to hire a representative to help you through this process.
There are some important case law examples that demonstrate why this process should be done through representatives.
In Marlow v Yorkshire New Zealand Ltd [2000] NZEmpC 31, an employee was made to sign an agreement requiring the employee to have no claim upon the employer, effectively signing away the employee's right to raise matters at a later time and without any compensation.
This was done to the employee using wording that was very difficult to understand:
"...whatever nature and whether already commenced or only potential or inchoate but it must also be limited to claims of the existence of which both parties were aware and to the claims of the nature they were discussing..."
And:
"...The settlement cannot reasonably be taken to extend to preclude the plaintiff from making claims coming to light later out of unrelated events during employment..."
The Employment Court observed that only the clearest words might be capable of compromising a cause of action which was not known to exist at the time a settlement was entered into.
Had the worker had representation in the room, there is likely no way they would have received advice to sign such an agreement. There are a number of tricks employers will use that employees should be on the lookout for — a good representative will be able to assist you in navigating through these.
If you or someone you know is considering raising an employment relationship problem, or is ending employment and does not have a representative, then any delay in seeking the right advice can hurt any chances when it comes to any future early resolution process itself.
Working for Workers is happy to assist in engaging in an early resolution process and in raising matters pursuant to your employment.
Working for Workers understands that it is hard to trust anyone when it comes to ending your employment.
Often, the experience of raising matters and trying to resolve matters can be stressful and you often feel alone without representation.
Working for Workers advocates and representatives have the skills and expertise to help you out and restore balance to the situation.
No matter how bleak or difficult it seems, there are ways and means of getting your rights observed and your position protected in an early resolution process.
Please contact us today to discuss the matter and start turning things around for you.
Contact us today