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Chief Judge: employment lawyers, institutions must ‘go back to the drawing board’ to address court delays

17 Nov 2023

| Author: Reweti Kohere

Employers and employees continue to face “inordinate” delays in having their cases heard, despite the Employment Relations Authority clearing a backlog of unallocated claims built up during covid-19.

Employment lawyers say the logjam has not improved in the face of new appointments to the specialist employment dispute resolution body. And there is mounting concern that the authority is not as “nimble, procedurally lean and technically unencumbered” as it is meant to be.

The delays are fundamentally about access to justice – a problem that is “deeply concerning”, in Chief Employment Court Judge Christina Inglis’ view. In an interview with LawNews earlier this week, Chief Judge Inglis said she hadn’t seen significant improvements for many years, although an answer lies in the statute governing the jurisdiction.

Prompt justice is important, Chief Judge Inglis tells LawNews. All Employment Court judges acknowledge that their decisions affect people’s livelihoods. “We need to be prompt in getting our decisions out, to give them certainty and to allow them to move on with their lives,” she says.

In enacting the Employment Relations Act 2000, Parliament saw a benefit in people resolving their employment disputes at an early, informal stage through specialist institutions. The long-standing issue of delays runs counter to the underlying objectives of the statute.

Chief Judge Inglis suggests the institutions and practitioners should reread the Act. Equipped by lawmakers with significant latitude to determine their preferred operating model, “we all need to go back to the drawing board and look at what we’re doing, why we’re doing it and how we’re doing it, to see if it actually marries up with parliamentary intent”, she says. “And if it doesn’t – which I think is the real question – then each of our institutions and others need to think about revamping.

The chief judge is all too aware of the risk of justice being denied. In an extra-judicial speech from April 2021, she said a right without practical access to a remedy “is hardly a right worth having”. Chief Judge Inglis tells LawNews that the court sees “a tiny tip of the iceberg” of would-be litigants. “Where’s the access for everybody else?” she asks. “If they want to test their legal rights and remedies, how do they get to court? It can’t possibly be right that it’s the preserve of somebody who has $60,000 in their bank account to pay a lawyer.”

Having built up a “complex, expensive and adversarial-type model” of dispute resolution that largely borrows from the ordinary courts, the employment law institutions have strayed away from their legislative objectives. “You can’t have simplicity if you’re going to be requiring people to jump through multiple procedural hoops,” the chief judge says. While procedure and process may have been prioritised over substance, the Act is clear about its preference. “We’re talking about behaviours and values and relationships,” she says. “We need to get back to basics if we’re going to deliver on parliamentary intent.”


The stats

The Authority says it issues an overwhelming majority of determinations within its statutory three-month deadline. According to its latest annual report, the number of decisions issued by deadline in 2020 sat at 91%, dropping to 90% in 2021 and 88% in 2022. At the same time, the number of determinations issued out of time has risen from 9% in 2020, to 10% in 2021 and 12% last year.

Under the Act, the Authority must give either an oral decision or indication of preliminary findings wherever practicable, although determinations can be reserved if good reasons exist. The Authority has three months to issue a reserved decision from the date on which the investigation meeting finished or on receipt of the last evidence or information – whichever is later. The chief of the Authority, Dr Andrew Dallas, can extend the deadline if there are exceptional circumstances.

The Employment Court expects to deliver 90% of its judgments within three months. In the first six months of 2023, the court delivered:

  • 72% of judgments within one month (73% in 2022 and 71% in 2021);
  • 93% within three months (90% in 2022 and 94% in 2021); and
  • 7% of judgments out-of-time (10% in 2022 and 6% in 2021). The expectation of timeliness is informed by s 222A, which requires the chief judge, in consultation with the chief justice, to periodically publish information about the number of judgments considered outstanding beyond a reasonable time for delivery and publish information about reserved judgments that are considered useful. Since January 2021, Chief Judge Inglis has publicly notified three judgments under the provision. At present, no case has fallen into this category.


A perfect storm

The Authority “confronted something of a perfect storm” of circumstances in early 2020, Dallas says in the annual report. Covid lockdowns forced adjournments that prolonged proceedings. And an influx of new cases (as many as 600 more applications than in 2019), together with an insufficient number of members, persistent vacancies and reduced access to mediation services stymied efforts to lessen the backlog. Nearly two years later, with new members onboard and its “workload equilibrium” restored, the Authority managed to clear its allocation backlog, Dallas says.

Fewer applications were lodged in the Authority in each successive year between 1 January 2020 and 31 December 2022, the report states, as the specialist body issued an increased number of decisions. Compared to the 2,475 applications made in 2020, some 2,114 were received in 2021 and 1,970 in 2022. In the same period, the Authority issued 539 decisions in 2020, rising to 581 in 2021 and 689 in 2022. No statistics of active cases were given. Personnel-wise, 30 members made up the Authority between 2020 and 2022; six members resigned and 15 were appointed.

In the Employment Court, 157 new cases were filed in the financial year ending 30 June 2023 – down four from the previous financial year. The court disposed of 203 cases, one more than the last financial year, and 140 cases remained active – eight fewer than the previous year. Chief Judge Inglis told LawNews the number of cases coming before the court, including the age of active cases, has remained “fairly consistent” over the past few years. On average, about 71% of cases in the system are younger than 12 months and the age of active cases in days is largely returning to pre-pandemic levels, she says. “I’m pretty confident that we deal promptly with our cases.”

The various Auckland lockdowns also delayed matters in the Authority as more than 200 in-person hearings were adjourned, often without a new hearing date set down. Dallas says allocating new files had to be managed to ensure the backlog “did not completely blowout”. As the only civil tribunal or court to keep offering in-person hearings during the pandemic, however, the Authority could “tread water rather than drown under the weight of our backlog”, he says.

By April 2022, as a result of some excellent mahi by members and increased resourcing, we were able to achieve workload equilibrium when all remaining files awaiting allocation were referred to members. Quite the contrast to a year previously, when the number of files awaiting allocation to members was approaching 500.”

While frustrated by the pandemic, the Authority can again become a world-class employment tribunal with no allocation backlog and increased resourcing, Dallas says. “The Authority is a nimble, procedurally lean and technically unencumbered tribunal. The new jurisdictions with which the Authority has recently been invested, demonstrate confidence in the institution.” The 2023 annual report is expected in the first quarter of 2024.


Simply waiting

Delays exist elsewhere in the system though. A cursory search of the Authority’s decisions database reveals that at least three determinations, issued toward the end of October 2023, date back to the first quarter of 2022 when personal grievances were first raised. Following receipt of further information, all three decisions were issued within the three-month deadline.

The 2020-2022 annual report suggests the Authority’s operations are working “fantastically”, an employment lawyer tells LawNews, “but it doesn’t work like that in practice”. A recent authority determination for one of his clients came two and a half years after raising the personal grievance. The decision was issued mere days after receipt of the last evidence.

The lawyer, who spoke only on condition of anonymity, says the time the specialist body is taking to resolve employment disputes is still “inordinate”, although he concedes the Authority is a better alternative to the former Employment Tribunal, which fell into disrepute in the 1990s and was abolished because it was too slow and too procedural. He remembers decisions would take a year to be released, or even longer.

The Employment Tribunal began its work in 1991 as a first instance body tasked with mediation and adjudication under the then-National government’s Employment Contracts Act 1991. The Labour government’s Employment Relations Act aimed to change the dispute resolution process by putting fairness, reasonableness and good faith front and centre of the employment relationship.

It was accepted that employment disputes would be inevitable and therefore were best addressed as promptly and as informally as possible. Dispute resolution would be shaped like a pyramid: considerable emphasis would be placed on mediation as the primary means of resolving the bulk of issues, with unresolved matters going to the investigative authority and then the Employment Court (and Court of Appeal). Parliament conferred a broad discretion on each institution to adopt a range of fit-for-purpose practices in pursuit of their statutory objectives.

The Authority’s role has also expanded considerably since 2000. Most recently, Parliament empowered the body to facilitate collective bargaining and to fix terms and conditions for pay equity settlements under the Equal Pay Amendment Act 2020 and collective agreements under the Screen Industry Workers Act 2022 and Fair Pay Agreements Act 2022. An increased jurisdiction has meant more work: the Authority in 2020 accepted five applications to facilitate collective bargaining disputes and declined two. Six applications were accepted in 2021, and 11 last year. Not one was declined in 2021 and 2022.

The current delays “almost never” square up with the statutory three-month deadline though, the lawyer says. “Some of the authority members, they actually work very hard, but the system is set up for dealing with case-by-case-by-case.” The Authority’s dilemma, which it has “never really sorted out”, is how to better triage the legally complex, urgent cases from the more straightforward ones, he says. Add into the mix that personal grievances are being taken at a cost of tens of thousands of dollars “easily”, and the issues of expense and delay place justice out of reach for most New Zealanders.


First go at justice

Another employment lawyer, who also declined to be named, agrees things have not improved; he has clients who are waiting for decisions on cases that were heard six months ago – double the statutory maximum timeframe. His longest-running case, which is awaiting a decision, was filed nearly two-and-a-half years ago.

The actual timeframe for people going through the system isn’t about the length of time their case is awaiting allocation, the lawyer says. It’s how long it takes from the start to the end of the process. “For a lot of our clients, that’s still running at over a year.”

A ready-made solution is s 174, the oral determinations provision. But such decisions are rarely given; they are almost always reserved, he says. An oral determination would save huge amounts of time, not only for the immediate litigants but also for other parties waiting in the queue. Authority determinations can resemble judgments in their length and the time it takes to write them, the lawyer says. “Given that an authority decision doesn’t have any particular precedent value, there’s no real benefit that I can see to them containing a detailed legal analysis.”

Another solution, which the lawyer says will need a simple fix by Parliament, is to require the recording of Authority investigation meetings. This means a challenge made against a whole Authority determination (a de novo application) results in the Employment Court rehearing the case afresh – it will gather all the facts itself and issue a new decision without being influenced by the previous authority determination.

Non-de novo challenges to parts of the determination are based on alleged errors of law or fact. However, it’s difficult for parties to establish such errors where they don’t know what evidence the Authority relied on in making its findings. The Employment Court has tended to rehear the evidence related only to the alleged errors.

The lack of recorded evidence is one of the lawyer’s bugbears as he doesn’t see why the Authority needs to issue a fully detailed decision when, “for the sake of a statement of claim and a $200 filing fee, the party who was unsuccessful can act as if [the determination] didn’t exist”, he says. The consequence is a disproportionately expensive process because the same case is heard twice. The possible reform wouldn’t improve authority timeframes, per se, “but it would dramatically simplify the Employment Court process. The cruellest thing in this jurisdiction is the fact you can go through a year-long authority process, a full multi-day hearing, and then have it start all over again.”

The issues of the Authority seem to be more acute; the cumulative delay for his clients is serious, the lawyer says. Where mediation falls over, the Authority is a person’s “first go at accessing justice” and it is here that matters can be dealt with in a reasonable timeframe. “If you think about the social purposes of this jurisdiction – of people who have a serious conflict affecting their lives, which should be resolved quickly – the authority is the key opportunity to do that.”


The blacklist

In a recent test case on name suppression, the full Employment Court bench heard submissions on a broader access-to-justice issue it is aware of: the informal practice of “blacklisting” employees. The court heard that workers are told at mediation to settle there and then rather than take meritorious claims to the Authority. Among the various litigation risks, employees’ names would most likely be published in decisions, which employers can later search online when screening job applications.

Chief Judge Inglis says it’s troubling if people who are seeking to exercise their legal rights feel under pressure not to do so because of further financial stress, possible reputational damage or the real likelihood of their case being reheard afresh in the court. In the face of these obstacles, “it would take a very resilient, strong-minded, resourceful litigant to proceed,” she says.

Solutions are needed urgently, says the second lawyer, who agrees that a return to first principles would help. “We see people just absolutely worn out by having these issues hanging over their heads for years on end. And it’s very hard for people to focus on getting their career back on track while they’re still locked in ongoing litigation over their last job. We’re really coming back to [asking] ‘what is this jurisdiction trying to be and what are these institutions for’?” ■

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