A guide for employees and employers
How to deal with an unresolved request
Most requests will conclude when the employer gives their decision.
But there will always be some instances where an employee feels their request has not been dealt with to their satisfaction. The employee may want to involve a third party or think about making a formal complaint. This section outlines the options available.
Informal discussion between the employee and employer
In the first instance, it is likely to be in the interest of all parties to try to resolve the problem within the workplace.
It may be that the employee believes there has been a simple misunderstanding of the procedure and that this has affected the employer’s decision.
If the employee feels able to discuss a complaint with the manager, it may be possible to resolve the issue without the need to resort to more formal mechanisms. Where a time limit has not been met, for example, it may be far more effective to speak to the manager directly. In this case, letting management know that they need to reply as soon as possible due to their breach, rather than seeking to pursue the matter through the formal dispute resolution process, would be the best option for everyone.
Third party assistance
Despite the best efforts of both parties, there will be cases where it may not be possible to resolve a disputed request in the workplace. However, neither the employee nor the employer may want to use the formal dispute resolution process. Both may want to try to resolve the matter in an informal fashion. In such circumstances, either party can seek assistance from the Department of Labour.
In specific circumstances, employees may make a formal complaint first to a Labour Inspector and then possibly the Mediation Service and the Employment Relations Authority.
Another external third party may also be appropriate, for example, a union representative, a local business representative body or another person with appropriate expertise.
The third party may attempt to resolve the problem through discussion. They will talk through the issues surrounding the problem, outline the law relating to the case where necessary and generally help parties become aware of the options open to them.
In what circumstances can a formal complaint be made?
Employees can make a formal complaint only where they believe the employer has made a wrong determination about their eligibility and/or if the employer has failed to comply with the process set out in Part 6AA.
If an employee believes that his or her employer has not complied with the process set out in the law, they can refer the non-compliance to the Department of Labour. The Department, through a Labour Inspector, must assist the employee and employer to resolve the matter to the extent practicable in the circumstances. If after working with a Labour Inspector, the matter remains unresolved, the employee may request mediation.
If mediation does not resolve the matter, the employee may apply to the Employment Relations Authority. A matter may be taken to the Authority if, for example, the reason for refusal given by the employer is not one of the Recognised Business Grounds (as this would be noncompliance with the required process).
Employees, however, have no right to make a complaint where they simply disagree with the grounds provided by the employer for refusing a request. The Authority does not have the power to question the employer’s reasons for declining a request nor can it consider whether or not the employer acted fairly or reasonably.
As a matter of good practice, employers should always provide an explanation that is as full and open as possible.
Employees must apply to the Authority:
- within 12 months of the employer’s refusal of the request
- or where the request is not responded to, up to 15 months after the employer received the request.
Remedies and compensation
If the Authority determines that the employer has wrongly determined that an employee is ineligible, the employer must follow the process to consider the request as soon as practicable.
If the Authority determines that the employer has not complied with the process as set out in the law, it can impose a penalty of $2000 payable by the employer to the employee concerned.
The Authority cannot require the employer to accept and implement the requested working arrangement.
What is a labour inspector/mediation/the Employment Relations Authority?
For information on the range of services and institutions available to support good employment relations, visit: http://www.dol.govt.nz/er/.
How the “right to request” interacts with other legislation
The “right to request” is one way for employers and employees to find flexible working arrangements that suit them both. Failure to follow the process will provide the employee with a basis to take their case to mediation or the Employment Relations Authority.
Other legislation that employers should be aware of when considering requests for flexible work includes the Health and Safety in Employment Act 1992 and the Holidays Act 2003. For information about these Acts, visit: http://www.dol.govt.nz/er/.