Gaining control of the too hard basket

15 April 2019

David Browne2For many employers their first experience with employment mediation comes by way of a personal grievance.  The reason for that is once an employee raises a grievance parties will be made to attend mediation whether they want to or not.  While the Employment Relations Authority calls that a “direction” to an employer it all too often feels more like an order.

Once the paperwork raising the PG is lodged with the Authority section 159 of the Employment Relations Act 2000 requires the member to consider whether the parties have been to mediation and if not to also consider directing parties to mediation.  Matters that have been to mediation must be given priority over matters which have not been to mediation.

A few years ago the Authority might have held a telephone conference call to take views from the employer’s and the employee’s representative before issuing the direction.  Nowadays, more often than not the direction is made without any consultation.

As a result of the process to get parties to sort a grievance at mediation and the mediation itself many employers end up with an unpleasant experience and a negative attitude towards mediation.  Some are left feeling beat up by the process.

However, there is another side to mediation which employers should consider.  The other side is proactive and taking this approach may also leave the employer in a better position overall when dealing with an employee whether the matter ends in a PG or not.  As one dispute resolution co-ordinator at MBIE recently put it, “The Employment Mediation Service is often used when there has been a dispute at work which is unresolved …. we are keen to try and get these disputes into mediation as soon as possible to try and maintain the employment relationship”.

The mediation service of the Ministry of Business, Innovation and Employment is willing and able to sit down with an employer and employee to voluntarily work through an employment matter before it escalates to a formal process affecting the employment of staff.  Unfortunately a dispute that lingers unresolved can undermine trust and confidence in the relationship and sour the workplace.  These “work-related problems” can also lead to the employer taking direct action which they later regret.  Strategic thinking is a better option when things are not going well in the work place, especially when it’s still early days and a PG which may be on the horizon hasn’t yet been raised.

The list of work-related problems supplied on MBIE’s website which they can and do provide mediation assistance to resolve features many of the problems members also regularly encounter.  The list includes: absence from the workplace, breach of contract, bullying, health & safety, leave and holidays, misconduct and sexual harassment.  One item on the list is simply “other”.

A request by an employer inviting their employee to attend a voluntary mediation of this type should also be accompanied by written material.  Letters, emails, diary notes, text message can be supplied to help the mediator get their head around the problem before sitting down to discuss at mediation.

Voluntary mediation can be a cost-effective way to resolve a problem and in doing so give the employer some sense of control over that employee who for one reason or another has been in the too hard basket for too long.

If you think you may have a difficult situation that you have been putting off dealing with it may benefit from strategic thinking involving voluntary mediation.  Whether it’s discipline, performance or some less tangible matter that can’t yet be categorised the legal team is available to discuss options for handling it and we will assist you to progress a solution which could involve attendance at voluntary mediation.


David Browne | Senior Solicitor


Legal Team


Diana Hudson | Managing Solicitor | 03 456 1804 | 021 816 469 |

David Browne | Senior Solicitor | 03 456 1812 | 021 225 6938 |

Angela MacKenzie | Solicitor | 03 218 7962 | 021 756 809 |

Roger Gudsell | Advocate | 03 455 5165 |

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