Alastair Espie
Like all areas of the law, the employment jurisdiction was confronted with several unique challenges throughout 2020, forcing practitioners and the employment institutions to adapt to new ways of operating and to accept significant disruption to the process of resolving employment relationship problems.
In this context, the ADLS Employment Law Committee was privileged to hear from two of the Employment Relations Authority’s Auckland-based members, Eleanor Robinson and Nicola Craig, at its November meeting.
Each provided an overview of the ongoing Covid-19 challenges facing the ERA and the steps taken in response, along with a discussion of more general trends.
Some of the key takeaways from the discussion were:
- At the time, the ERA had a backlog of approximately 130 files awaiting allocation to members.
- In the months following the initial lockdown, there was an increase of nearly 33% in the number of applications being lodged with the ERA.
- During lockdown periods, the ERA has sought to advance applications via email.
- It identified Covid-19-related issues that could be fast-tracked, allowing relevant principles to be set out. Since these cases were determined, the number of Covid-19-related applications has begun dropping.
- Due to the high number of applications, the ERA has been unable to schedule investigation meetings inside the timeframes that practitioners are accustomed to. So, it has adopted a priority waitlist system to assist in clearing the backlog. Under this system, cases that were adjourned because of lockdowns were prioritised. Others are being scheduled based on the order in which they become ready for an investigation meeting (ie, once all documentary material has been filed). But there remains scope for urgent applications, such as interim reinstatement claims, to be advanced expeditiously.
- Zoom has proven an effective tool to efficiently advance applications. However, its primary use has been for submission-only investigation meetings or to allow overseas witnesses to participate in the process. The ERA still prefers face-to-face investigation meetings if evidential disputes need to be resolved.
- Less than 50% of parties are represented by lawyers. Those not represented by lawyers are either self-represented or represented by non-lawyer advocates.
The committee greatly appreciated the members’ insights and time. With Covid-19 likely to continue casting a shadow for the foreseeable future, employment practitioners need to understand the impact it is having on the ERA and its caseloads so client expectations can be managed.
Alastair Espie is a senior associate at Duncan Cotterill and a member of the ADLS Employment Law committee
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