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RESULTS
Response rate
Thirty one mediators filled in 312 questionnaires between 17th July and 18th August 2006. Although the services were asked to keep a record of how many disputes related to potential personal grievances were mediated in their service during the period of data collection, it became apparent that this was not a straightforward task for a number of reasons. This included such situations whereby a mediation may be recorded in the paper diary and WorkInfo as a 'personal grievance', but when the mediator actually meets with the applicant and respondent for the mediation it may turn out not to be related to a personal grievance. Also several services said that mediation appointments are put in their diaries but do not necessarily distinguish what type of mediation it is. There seems to be no mechanism for adjusting data collection to capture this and varying consistency with how this information is collected.
One of the mediation services was unable to keep a tally of how many disputes related to potential personal grievances went through their service during the data collection process, so the response rate has been calculated for the remaining six services only. Therefore, the approximate number of disputes related to potential personal grievances mediated during this period in the seven services was 261. The response rate was calculated by comparing these two figures, and was approximately 86% (for regional breakdowns see Appendix B). There is no reason to believe that the personal grievance mediations not included in this survey differed in any systematic way with those incorporated in this study.
The following frequency tables give information about personal grievance issues, applicants' profile, information about the applicants' employment relationship, their organisation size and industry, representation involved during the mediation and settlement components. Regional subsets have not been analysed for the purposes of this report but the raw data is held in the access database for future analysis.
Personal grievance type
The most common type of disputes related to potential personal grievance was unjustified dismissal (47.3%), followed by unjustifiable action (24.3%) and constructive dismissal (15.3%)[5]. Some applicants had more than one issue that gave rise to an alleged personal grievance.
Table 1: Alleged action leading to personal grievance claims between 17th July and 18th August 2006
| Type of personal grievance |
Number |
Percentage |
Unjustified dismissal |
148 |
47.3% |
Unjustifiable action |
76 |
24.3% |
Constructive dismissal |
48 |
15.3% |
Redundancy |
41 |
13.1% |
Discrimination |
6 |
1.9% |
Harassment |
5 |
1.6% |
Duress |
1 |
0.3% |
Other |
46 |
14.7% |
The 'other' category included wage issues (10), employment relationship problems (7); bullying (4); holiday pay issues (4); and dispute settlement issues (2).
Applicant profile
Mediators were requested to ask applicants their answers to the demographic questions as, due to the often difficult nature of mediations, it was deemed inappropriate to ask applicants to fill in a section of a questionnaire. If there was difficulty obtaining this information, mediators were asked to leave these questions blank.
The categories of young people were expanded to three sets of ages due to the interest in youth as a potentially vulnerable population group who may be affected by the Employment Relations (Probationary Employment) Amendment Bill. Forty three percent of applicants were in the 40-65 year age group (c.f. Household Labour Force Survey (HLFS)[6] 2005 - 49%), followed by 37.1% in the 25 to 40 age group (cf 32%). Sixteen percent of applicants were in the 14-25 age group (cf 16%).
Table 2: Age of Applicant
| Age |
Number |
Percentage |
14-17 yrs |
5 |
1.6% |
Over 17 and up to 20 yrs |
13 |
4.2% |
Over 20 and up to 25 yrs |
32 |
10.2% |
Over 25 and up to 40 yrs |
116 |
37.1% |
Over 40 and up to 65 yrs |
135 |
43.1% |
Over 65 yrs |
2 |
0.6% |
No response |
10 |
3.2% |
There were almost equal numbers of female (150) and male (156) applicants seeking mediation related to potential personal grievances during the five weeks of the survey. This compares with HLFS 2005 data of 46% females and 54% males.
Table 3: Sex of Applicant (n=312)
| Sex |
Number |
Percentage |
Female |
150 |
47.90% |
Male |
156 |
49.80% |
Unknown |
6 |
1.90% |
The majority of applicants were of New Zealand European ethnicity (62%), followed by New Zealand Maori (16.3%). The HLFS 2005 data on ethnicity is all European 79% (cf with combination of two European categories below of 71.6%), Maori 9%, Pacific 4%, and 'other' which includes Asian and Middle Eastern, Latin American and African, as 8%. Fewer than five applicants chose more than one ethnic group and due to the small number these were analysed as the 'other' group.
Table 4: Ethnic group(s) of Applicant
| Ethnic group |
Number |
Percentage |
NZ European |
194 |
62.0% |
NZ Maori |
51 |
16.3% |
Other European |
30 |
9.6% |
Pacific Peoples |
10 |
3.2% |
Asian |
8 |
2.6% |
Middle Eastern/Latin American/African |
5 |
1.6% |
Other |
6 |
1.9% |
No response |
9 |
2.9% |
Profile of organisation applicant employed by
Ministry of Economic Development definitions of business or enterprise size are small 1-5 employees, medium 6-19 employees and large, as 20 or more employees. In terms of the survey the results show 45 (14.4%) worked in small enterprises, 82 (26.2%) in medium-sized enterprises, and 173 (55.2%) in large enterprises. This compares with HLFS 2005 data on number of employees in organisations where 11% work in organisations where there are between 1-5 employees, 19% in organisations between 6-19 employees, 14% in organisations of between 20 and 49 employees, 9% between 50-99 employees, and 47% work in organisations of over 100 employees.
Table 5: Number of employees in the organisation applicant is employed by
| No of employees |
Number |
Percentage |
Between 1 and 5 |
45 |
14.4% |
Between 6 and 19 |
82 |
26.2% |
Between 20 and 49 |
43 |
13.7% |
Between 50 and 99 |
31 |
9.9% |
Between 100 and 499 |
48 |
15.3% |
500 or more employees |
51 |
16.3% |
No response |
13 |
4.2% |
As mentioned previously, the questionnaire included ANZSIC level two categories for industry classifications. However due to small numbers in some categories these were collapsed into level one for the purposes of analysis. Due to the limited data collection period the survey does not capture variations in seasonal work which occurs in many industries, particularly over the summer months.
Table 6: Industry group of organisation applicant employed by
| Industry group |
Number |
Percentage |
Construction |
38 |
12.1% |
Retail Trade |
37 |
11.8% |
Health and Community Care Services |
36 |
11.5% |
Manufacturing |
36 |
11.5% |
Accommodation, Cafes and Restaurants |
25 |
8.0% |
Education |
21 |
6.7% |
Transport and Storage |
20 |
6.4% |
Property and Business Services |
20 |
6.4% |
Personal and Other Services |
15 |
4.8% |
Agriculture, Forestry, and Fishing |
14 |
4.5% |
Government Administration and Defence |
11 |
3.5% |
Finance and Insurance |
9 |
2.9% |
Communications Services |
7 |
2.2% |
Wholesale Trade |
6 |
1.9% |
Cultural and Recreational Services |
4 |
1.3% |
Electricity, Gas, and Water Supply |
2 |
0.6% |
Mining |
1 |
0.3% |
No response |
11 |
3.5% |
Applicant's terms of employment
The majority of applicants (260/83%) were employed on permanent contracts. However due to the limited data collection period variations in seasonal work and likely differing terms of employment would not be captured in these results.
Table 7: Applicant's terms of employment
| Terms of employment |
Number |
No response |
3 |
In dispute |
31 |
Other |
14 |
Fixed Term |
31 |
Permanent |
260 |
The largest group of applicants had been employed between 1-4 years (37.4%) with their employer. Sixty eight (22%) had been employed between 0-6 months.
Table 8: Length of time applicant employed by employer (n=312)
| Length of time |
Number |
Percentage |
0-3 months |
31 |
9.90% |
4-6 months |
37 |
11.80% |
7-9 months |
24 |
7.70% |
10-12 months |
29 |
9.30% |
1-4 years |
117 |
37.40% |
5-9 years |
35 |
11.20% |
10 or more years |
34 |
10.90% |
No response |
6 |
1.90% |
Table 9 shows that the majority of applicants (82.4%) worked full time. However the data is limited to the collection period of July 17th until August 18th and has not captured a wide range of seasonal work that occurs in the summer months during which numbers of part time and casual work are likely to increase.
Table 9: Applicant's hours of work (n=312)
| Hours |
Number |
No response |
10 |
Casual |
6 |
Part time |
39 |
Full time |
258 |
Representation
Mediators were asked to record whether representation was used for the personal grievance and what type. The following results show that 88.8% of applicants and 60.7% of respondents had representation.
Table 10: Applicant and Respondent representation at personal grievance mediation
| Represented |
Applicant |
Respondent |
Yes |
278 |
190 |
No |
31 |
111 |
No response |
2 |
10 |
Table 11, below, shows that the most common form of representation was a lawyer, for both applicants (43.5%) and respondents (40.3%). Applicants also favoured a union representative (22.4%) and an employment advocate (20.1%). The second most common form of representation for respondents was an advocate (16%).
For applicants, the 'other' category included their current employer (1) and an unemployed workers rights group (1). For respondents, the 'other' category included human resources representative (6), in-house legal representative (2), company's accountant (1), school trustees association (1) and the Employers and Manufacturers Association (1).
Table 11: Type of representation used by applicants and respondents
| Type of Representation |
Applicant |
Respondent |
Union |
70 |
6 |
Lawyer |
136 |
126 |
Employer Advocate |
63 |
50 |
Family/friend |
5 |
5 |
Other |
3 |
11 |
Settlement
Mediators were asked to record whether a settlement was reached at the conclusion of the mediation. One hundred and ninety six personal grievances (62%) were settled at mediation with a further 5.1% partially settled.
Table 12: Settlement of personal grievance at conclusion of mediation
| Settlement |
Number |
No response |
16 |
Outcome unknown |
11 |
Partially settled |
16 |
Not Settled |
74 |
Settled |
196 |
Table 13, below, shows that in 51% of mediations some type of financial compensation was agreed. The most common settlement amount was over $2000 and up to $5000 (24.9%). Note that Table 16 summarises the amount of wages agreed at settlement. In many settlements agreed at mediation, no distinction is made between general financial compensation and compensation for wages in arrears. This means that Table 13 is likely to include compensation agreed for wages in arrears and any other financial settlement.
Mediations showing 'no response' for financial compensation were, in general, those personal grievances either not settled or only partially settled.
Table 13: Financial compensation at settlement
| Amount |
Number |
Percentage |
Nil |
56 |
17.9% |
Up to $500 |
4 |
1.3% |
Over $500 and up to $1000 |
18 |
5.8% |
Over $1000 and up to $2000 |
18 |
5.8% |
Over $2000 and up to $5000 |
78 |
24.9% |
Over $5000 and up to $10,000 |
30 |
9.6% |
Over $10,000 and up to $30,000 |
13 |
4.2% |
Over $30,000 and up to $50,000 |
1 |
0.3% |
Over $50,000 |
1 |
0.3% |
No response |
93 |
29.7% |
The most common types of settlement components were certificates of service (18.2%), legal costs (15%), references (14.7%) and resignation (12.5%).[7]
Table 14: Other components of settlement
| Other Components |
Number |
Apology |
27 |
Cert. of Service |
57 |
Legal Costs |
47 |
Notice |
4 |
Reference |
46 |
Reinstatement |
4 |
Resignation |
39 |
Wages |
23 |
Other |
76 |
The 'other' components of settlement (Table 15 below) covered a range of agreed actions, costs, and understandings between the applicant and respondent depending on the individual circumstances of the personal grievance. The following table gives a broad grouping of the different types of agreements.
Table 15: Other agreements at settlement
| Broad type of agreement |
Number |
Return of property |
4 |
Holiday pay |
4 |
Not to speak ill of each other |
8 |
Monetary allowances, costs, payments |
15 |
Other agreements |
29 |
Of the 23 (7.3%) personal grievances that resulted in an agreement that specified compensation for payment of wages, the following table gives a breakdown of the amounts, with seven falling into the $0 - $1000 category, and 10 between >$1000 and $5000.
Compensation for payment of wages (Table 16) and compensation for legal costs (Table 17) may also be included within the general financial settlement figures (Table 13). Although the incidence of compensation for wages in arrears may appear low - in fact, in many cases it has been included within a general financial settlement.
Table 16: Amount of wages agreed at settlement
| Amount of wages |
Number |
0-$1000 |
7 |
>$1000 - $2000 |
3 |
>$2000 - $3000 |
4 |
>$3000 - $5000 |
3 |
>$5000 - $10,000 |
1 |
>$10,000 - $15,000 |
1 |
>$15,000 - $20,000 |
1 |
>$20,000 - $30,000 |
1 |
Of the 47 (15%) of legal costs agreed and specified as part of the settlement, the largest proportion (19) were in the >$1000 - $2000 category. Almost all legal costs agreed were between $0 and $5000.
Table 17: Amount of legal costs agreed at mediation
| Amount of costs |
Number |
0-$1000 |
7 |
>$1000 - $2000 |
19 |
>$2000 - $3000 |
9 |
>$3000 - $5000 |
7 |
>$5000 - $10,000 |
2 |
>$10,000 - $15,000 |
1 |
Correlation analysis
A correlation analysis was undertaken to explore whether there were any relationships of significance between variables, with the following results.
The data was tested to determine whether there was any relationship between representation and the probability of reaching a settlement[8]. There was no significant relationship between whether the applicant was represented and the likelihood of settlement. This finding of no relationship with representation holds for each of the individual types of representation.
However, results show that there is a significant relationship between the type of representation and the amount of settlement, with applicants represented by a lawyer receiving compensation that was higher by a statistically significant amount than those represented by employment advocates or unions[9]. However, the level of settlement is likely to be affected by the level of an applicant's salary or wages.
Figure 1: Compensation by Representation
Length of service and compensation
The data shows only a weak relationship between length of service and financial compensation settlements, but a strong relationship between the amount of compensation and wage payouts where both types of payouts were made. However there was only a small group of mediations (10) where settlements included both types of payouts.
Size of organisation and length of service
There was a significant relationship between the size of organisation and the length of service when the dispute reached mediation. Small and medium sized organisations had a higher proportion of personal grievance claims taken against them within the first 1-6 months of employment. Conversely, large organisations of 50 or more employees showed a higher proportion of personal grievance claims taken against them where the length of employment was longer than one year.
Size of organisation, type of personal grievance and length of service
Larger organisations of 100 or more employees were significantly more likely to have personal grievances of unjustifiable action brought against them, while small organisations were more likely to face unjustified dismissal claims. Consistent with this finding, claims of unjustifiable action were significantly more likely to be made by employees employed for five years or more, and personal grievances of unjustified dismissal were more likely to be made by employees employed for nine months or less.
Type of dispute and terms of employment
There was no significant relationship between the type of personal grievance dispute and the terms of employment.
Influences on the amount of compensation at settlement
Under multi regression analysis the following factors had the greatest amount of influence on the levels of compensation agreed at mediation:
- Applicants who had a lawyer had higher amounts of compensation
agreed at mediation;
- Respondents who had representation (particularly by an
association or union) paid out lower amounts of compensation; and
- Personal grievances related to redundancies resulted in higher
amounts of compensation.
However even combining all of these factors explains less than one fifth of the variation in compensation.
Table 18: Compensation - Multiple Regression
| |
Explanatory power |
Employee has Lawyer |
0.059 |
Employer uses Association |
0.044 |
Employer represented |
0.033 |
Redundancy |
0.027 |
Random variation |
0.837 |
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