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The Disputes Tribunal

The Disputes Tribunal can be a good option for settling disputes.

At one time more commonly referred to as the Small Claims Court; the tribunal can hear cases on almost anything – from hire purchase contracts to cattle grazing, car repairs to fencing disputes and even the quality of your haircut.

Tribunals are more flexible than a court and it’s a “lawyer-free” environment where you present your case in front of a referee. The referee’s job is to encourage both sides to reach an agreement before giving a binding decision. The tribunal can’t hear all disputes. The easiest way to find out whether your dispute can be heard is for court staff to check its eligibility when the claim is lodged.

Meanwhile, the tribunal’s claim limits have been increased. If a dispute is over something worth up to $15,000, it can be heard automatically. If the value is between $15,000 and $20,000, both sides must agree for it to go to a tribunal.

The cost of filing a claim depends on the amount being claimed, but will range from $30 to $100.

90-day trial benefits employers

With the current economic uncertainty, the job market is tight with employers apprehensive about employing or replacing staff and some unemployed willing to demonstrate to an employer by way of a trial period that they can do the job.

Some employers might consider using the 90-day trial period as an option, but beware that you get it right before you jump in. Here is a brief summary of the main points to consider.

1. The trial period applies to employers who employ fewer than 20 employees, whether they are casual, fixed term, part-time or full time employees.
   
2. The law only applies to new employees and cannot affect any existing employee in their current job.
   
3. A trial period is not automatic for new jobs in small businesses. It only occurs if the employer and employee agree to it.
   
4. The trial period will need to be in the Employment Agreement.
   
5. The 90 days is a maximum and it can, by agreement, be less.
   
6. All employment rights such as good faith, non-discrimination, non-harassment, holidays, leave and OSH are maintained during a trial period. It is only if you dismiss an employee for such matters as poor performance, misconduct or redundancy during the trial period that they will not be able to take a personal grievance. If you dismiss someone because they are pregnant (for example), you can have a grievance brought against you because this is sexual discrimination.
   
7. The termination itself does not have to fall within the 90-day period of the trial period. The employer must give the employee notice of termination within the period. There is no minimum notice period in the legislation - it simply says that the employer must "give the employee notice" - so you need to comply with your contractual notice period. Your 90-day trial clause may specify a specific notice period.
   
8. Employees can still bring personal grievances for sexual or racial harassment, unjustified disadvantage, discrimination, duress and failure by an employer to comply with the continuity of employment provisions (where there is a sale or transfer of the business) in the Employment Relations Act 2000 or in the Employment Agreement.
   
9. There can be only one trial period per employee. An employer can not have a trial period for an employee who has worked for them previously.
   
10. If an employee leaves a benefit (WINZ) to take up a job which is terminated within the 90-day trial period, there is no stand down returning to the benefit.
    We recommend that you contact either John O'Leary or Julie Mettrick to discuss before you enter into any 90-day trial period arrangement.

Lawspeak

A newsletter from Nolans, Gisborne’s leading law firm

Lawspeak, Nolans - December 2008