Worker fails to reopen investigation of ERA application

The Employment Relations Authority (ERA) recently dealt with a case involving a worker's attempt to reopen an investigation into their employment dispute with a confectionery company.

The case centred around issues of casual employment, dismissal, and personal grievances. In this matter, the ERA had to examine questions about the nature of casual employment and the circumstances under which a worker can claim unjustified dismissal or disadvantage.

The decision highlighted important considerations for both employers and employees in navigating the often unclear dynamics of casual work arrangements.

Casual employment and dismissal claims

The worker initially brought claims of unjustifiable dismissal and unjustified action causing disadvantage against their employer, a confectionery company.

However, these claims were not upheld in a determination dated 13 November 2023. Undeterred, the worker applied to reopen the investigation, arguing that the ERA's findings were contrary to the evidence.

One of the key points of contention was the ERA's conclusion that the worker had not been dismissed, despite the existence of a dismissal letter.

The ERA had determined that the worker was employed on a casual basis, and the employer had simply decided not to offer further work at the end of the last accepted shift.

The worker's advocate argued that this finding was inconsistent with the evidence, particularly given the existence of a letter of dismissal. However, the ERA maintained its position, stating:

"As [the worker’s employment] was casual, the circumstances in which her employment stopped cannot give rise to an unjustified dismissal grievance."

Unjustified disadvantage

Another point of disagreement centred around the worker's claim of unjustified disadvantage.

The worker argued that the employer's actions in investigating an incident on 12 January 2023 were not justified, forming the basis for an unjustified action causing disadvantage personal grievance.

The ERA, however, took a different view. It determined that the worker could not have an unjustified disadvantage grievance based on the January incident, as it related to the decision not to offer further work.

The ERA emphasised that an employer need not justify a decision not to offer a casual employee further work.

Should the ERA reopen the investigation?

In assessing the application to reopen the investigation, the ERA considered  several key principles:

• The overarching concern is to avoid a miscarriage of justice.
• A reopening application is not to be used as a means of relitigating arguments already considered.
• The ERA should be reluctant to entertain a reopening application on grounds that could be the subject of a challenge in the Employment Court.
• A special or unusual circumstance is required to warrant reopening.

The ERA ultimately concluded that the worker had not established a miscarriage of justice or even a risk of one. It said:

"What [the worker] needs to establish in term of a miscarriage of justice is some special or unusual circumstance relating to the investigation and/or determination of her employment relationship problem, which was or would be material to the outcome."

The ERA further emphasised:

"[The worker] has not established this; she has shown a disagreement with the Authority's finding of fact and law. This disagreement is not an unusual circumstance leading to a miscarriage of justice but rather it is something that is rightly subject of a challenge in the Employment Court not a reopening."

Consequently, the ERA declined to reopen the investigation. The decision underscored the importance of understanding the nature of casual employment relationships and the limited grounds for reopening an ERA investigation. It also highlighted the distinction between disagreeing with a decision and establishing a genuine miscarriage of justice.