Recently, the Employment Relations Authority made a ground-breaking determination with respect to the Wage Subsidy. In essence, the Employment Relations Authority held that employer cannot reduce an employee's wages without that employee's consent. If an employer has reduced an employee's wages without consent, the employee may make a claim to recover those lost wages. You can read the whole determination here.
My primary objective as "Ashleigh the Advocate" is to promote access to justice. For that reason, I am going to provide a step-by-step guide on how to raise a wage claim to recover your lost wages. There's no need to pay anyone to do this for you.
Did you know that 20% of people who appear at the Employment Relations Authority represent themselves? It truly is an easy process, and I have full faith that you can manage this! If you need, take your time. You have six years to raise a wage claim.
As a disclaimer; this post does not serve as legal advice, and it is expected that you will seek preliminary legal advice to determine your chances of success. Be aware that if you progress your claim to the Employment Relations Authority, and you are unsuccessful, you may be liable to pay part of your employer's legal costs.
NOTE: This article may not apply to you if your wages have been reduced as a result of a fair and reasonable restructure process. If you have any concerns, please reach out!
STEP ONE: Raise the issue with your employer
The first step is simple; raise the issue with your employer. You do not need to write a letter on a fancy letterhead, but rather you just need to alert the employer to your claim. This can be done by email.
You will want to state that you believe you have been underpaid your wages, as owed to you in your employment agreement, and that you believe this amounts to a breach of the Wages Protection Act 1983. You will want to calculate the wages you believe are owed to you, so that you can provide this to the employer.
The next steps are as follows:
Request the employer pay the unpaid wages in full; if this is not successful you can
Enter into a negotiation to resolve the dispute; if this is not successful you can
Invite the employer to mediation (see step two); if this is not successful you can
File with the Employment Relations Authority for redirection to mediation (see step three).
STEP TWO: Apply to mediation
Mediation is a voluntary process. Once you have received agreement from your employer to attend mediation, you can make an application online here. You will need to log in with your "Real Me" account, and then select the option "I am an individual representing myself ..."
You will then need to select the "Work Related Problem" tab. From there, it is a simple task of filling in the relevant information. Note that you are the "Applicant" and your employer is the "Other Party." It can be hard to determine the person of contact for your employer. Usually, I pick the person who has been communicating directly with you about the issue. This could be your manager, a member of the HR team, or the owner.
Please provide mediation services with details of your claim. If you have any emails or letters which substantiate your position, you can upload them. Otherwise, you can provide an overview in the "Additional Information" section.
Mediation services is a free process, and can be offered either in person or via teleconference. If you have a preference, be sure to leave a comment in the "Additional Information" section.
A Disputes Resolution Coordinator will then be assigned to your file. If there are any issues with your application, they will contact you. Otherwise, they will begin to provide you with proposed dates for mediation.
Employment New Zealand have provided significant free advice on how to prepare for mediation. You can read more about this here.
STEP THREE: File with the Employment Relations Authority
You may need to file with the Employment Relations Authority if:
Your employer does not agree to attend mediation. If your employer does not agree to attend mediation, the Employment Relations Authority will usually direct them to attend mediation as a result of your application.
Mediation was unsuccessful in resolving the dispute. In this case, the purpose of filing with the Employment Relations Authority is to have your matter heard, and decided, by a Member of the Authority.
Please note: there is a fee of $71.56 for filing with the Employment Relations Authority.
The first thing you'll need to do is to download a template "Statement of Problem", or application to the Authority. You can download the official document here. However, if you would prefer, you can use my partially completed template, here.
You need to be clear about your claims, and the facts which you are relying on to substantiate your claims. You should refer to yourself as "the Applicant" and your employer as "the Respondent", however this is not necessary.
In this instance, the claim is that the Respondent has breached the Wages Protection Act 1983, in that it failed to pay the Applicant their wages in full, in accordance with the Individual Employment Agreement. You will then need to detail the terms of the employment agreement, and provide the Authority with all the information it needs to make a determination. This will include all relevant correspondence and your payslips for the relevant time period.
Once you have signed it, you can make the application online here. You will then log in with your "Real Me" account, and select "Application to Authority." The form to complete is much like the form you complete for mediation. It can be hard to determine the person of contact for your employer. Usually, I pick the person who has been communicating directly with you about the issue. This could be your manager, a member of the HR team, or the owner.
You will need to upload the application by clicking "Add Application Form", and then you can upload the attachments by clicking "Add Supporting Document."
Once completed, click "submit" and you will be taken to the payment page. You can pay with either debt/credit card or via internet banking direct.
An Authority Officer will then be assigned to your case. If there are any issues with your application, they will contact you. They can also support you through the Authority process, and can provide you with relevant information.
What next? Once the Statement of Problem has been served on your employer, the Respondent, they will have 14 days to provide a "Statement in Reply." After this has happened, the parties will be directed to mediation (if this has not yet occurred), or a teleconference will be set to schedule the Investigation Meeting.
You can read more about the Authority process on their official website here.
If you are required to represent yourself at an Investigation Meeting, don't worry! The Employment Relations Authority is an informal setting. You don't have to know how to cross-examine; the Authority Member will ask the questions they need to assist them in their decision making.
NOTE: You can use this same process for unpaid holiday pay.