ILO is a specialized agency of the United Nations
ILO-en-strap
Go to the home page
Site map | Contact us français | español
> GOVERNANCE - home > Employment protection legislation database - EPLex > New Zealand

New Zealand - Avenues for redress (penalties, remedies) and litigation procedure for individual complaints


Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - New Zealand - 2019    

+ show references

Compensation for unfair dismissal - free determination by court: Yes

Remarks:
  • • There are no statutory limitations as to the amount of compensation to be awarded in the event of unfair dismissal.
    Sec. 123 ERA provides that if the Employment Authority or Court determines that a dismissal was unjustified, it may provide for any 1 or more of the following remedies:
    - reinstatement;
    - reimbursement of the whole or any part of the wages lost as a result of the dismissal;
    - compensation for humiliation, loss of dignity, and injury to the feelings of the employee; and loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to have obtained had he or she not been dismissed.

    Up-to-date figures for non-remuneration compensation are available at: https://www.employment.govt.nz/about/employment-law/compensation-and-cost-award-tables/

Reinstatement available: Yes

Remarks:
  • The ER Amendment Act 2018 s 47 restores the pre-2010 provision and (from 11 December 2018) provides that:

    “125 Reinstatement to be primary remedy
    (1) This section applies if—
    (a) the remedies sought by, or on behalf of, an employee in respect of a personal grievance include reinstatement; and
    (b) it is determined that the employee did have a personal grievance.
    (2) If this section applies, the Authority or court must provide for reinstatement wherever practicable and reasonable, irrespective of whether it provides for any other remedy as specified in section 123.

Preliminary mandatory conciliation: Yes

Remarks:
  • - The Ministry for Business, Innovation and Employment (MBIE) provides a Mediation services in order to help the employer and employee to resolve their dispute by mutual agreement. If the parties come to an agreement, once it is signed by the Mediator, it will be final and binding.
    - In addition, the ERA provides for the duty of the Employment Relations Authority to consider mediation (sec. 159 ERA). That means that it shall first consider whether an attempt has been made to resolve the matter. However, according to sec. 159AA ERA, in case mediation is not requested by both parties, the authority should not refer the case to mediation, unless it considers the alleged breaches to be minor or it is satisfied that will be a cheaper and quicker way to clarify disputed facts or otherwise assist the authority in considering the matter. Before referring to mediation, the authority must also consider, whether it would contribute constructively to resolving the matter; or be in the public interest; or undermine the urgent or interim nature of the proceedings. (Based on the same considerations, when a case reaches the court, the court can also again consider on whether to refer the case to mediation, sec. 188 (2) and 188A ERA.)

Competent court(s) / tribunal(s): labour court; administrative body

Remarks:
  • - The ERA gives exclusive jurisdiction to the Employment Relations Authority, an independent body, to make determination about personal grievances, which amongst other things include unfair dismissal claims (sec. 161(1)e) ERA). This provision removed the possibility for employees to pursue a claim for wrongful dismissal under civil law.
    - Either the employer or employee may challenge a determination of the Authority, within 28 days after the date of the determination, in the Employment Court.
    A challenge may relate to the whole of the determination (in which case, there will be a de novo hearing) or be restricted to some limited aspect of a determination (sec. 179 and 187 ERA)

Existing arbitration: Yes

Remarks:
  • The ERA reserves the possibility for the parties to resort to arbitration or other mediation services. (secs. 154 and 155 ERA)