New Zealand Law Society - ERA updates guidance on service, procedure and timeframes

ERA updates guidance on service, procedure and timeframes

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The Employment Relations Authority has provided information additional to that in its 24 March COVID-19 update. This covers service and affirmation of statements and affidavits, directions to mediation and timeframes for personal grievances.

Personal grievance timeframes

The ERA says the statutory requirements for personal grievances to be raised within 90 days and to pursue a grievance within three years remain unchanged. Any exception to the 90 day rule would require an application under section 114(4) and section 115 of the Employment Relations Act 2000.

Service of statements of problem

During the restrictions postal and courier delivery to the addresses and registered offices of respondents cannot be relied in the usual way to provide respondents with the opportunity to reply within 14 days. The ERA says instead, Authority officers will endeavour to contact respondents by telephone and email to advise them of the application and to arrange delivery of the statement of problem by email. Applicants and representatives are encouraged to ensure their applications include known details of phone numbers and email addresses for respondents. Where service cannot be arranged in this way, service will be deferred for completion once restrictions are lifted.

Affirmation of witness statements for Authority investigations

Where investigations are continuing ‘on the papers’, by telephone or video connection, the Authority says it may have witnesses affirm any written witness statements by telephone or video connection. In those circumstances, the witness will be asked to take an affirmation, confirm their identity and confirm the contents of the statement.

Affirmation of affidavits for interim applications 

During the restrictions people who are providing affidavits in support of applications for interim reinstatement or interim injunctions may not be able to follow the usual steps of having those affidavits sworn or affirmed in front of a solicitor, justice of the peace or court registrar. The Chief of the Authority has issued an instruction to Authority Members under section 166A of the Employment Relations Act (the Act) allowing them to vary the Authority’s usual procedure by, instead, arranging for the deponents to affirm affidavits and any necessary undertakings by telephone or video connection with a Member. In those circumstances the Member will ask such deponents to take an affirmation to confirm their identity and confirm the contents of the affidavit.

Directions to mediation

The Authority says Employment Mediation Services is providing mediation by telephone or video connection during the restrictions. Parties are expected to comply with any direction made by the Authority to mediation and to co-operate in taking part in mediation by whatever means the mediator decides is appropriate under section 147 of the Act.

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