Publish on Lawtalk
By Mai Chen
Issue 939, May 2020
In LawTalk 938, April 2020, I wrote about “Judicial leadership on equal access to justice for Culturally and Linguistically Diverse Parties in Courts”. That article summarised the unique insights that judges of the senior courts provided at a seminar co-hosted by New Zealand Asian Lawyers (under the umbrella of the Superdiversity Institute for Law, Policy and Business) and the New Zealand Law Society about the issues and challenges of representing culturally and linguistically diverse (“CALD”) parties in Court. This seminar followed the launch of the Superdiversity Institute’s report on “CALD Parties in the Courts: A Chinese Case Study” (“the CALD report”) in November 2019.
I was recently asked by Members of the Employment Relations Authority (ERA) in Auckland to speak to them and the Registry staff about the issues and challenges of CALD parties in the ERA jurisdiction. That session highlighted that the ERA (which is an investigative body, in contrast to the senior courts which are adjudicatory bodies) is aware of the challenges in ensuring access to justice for CALD parties, and this issue is as significant in the ERA jurisdiction as in the higher courts.
The ERA Members reported that a high proportion of cases before the ERA in Auckland involve employees and employers from CALD communities. Many are recent migrants who do not speak English fluently or/and who have limited understanding of New Zealand employment law and practice.
Issues and Challenges
The key issues, challenges, and themes arising from CALD parties before the ERA, as discussed during the session and as confirmed by cases, include:
- high rates of self-representation among CALD parties;
- high rates of non-engagement by CALD parties – ie, failing to file statements in reply and failing to attend Investigation Meetings before the ERA;
- cultural concepts such as “face” acting as a barrier to settling matters before proceeding to the ERA;
- little contemporaneous documentary evidence available, including lack of required employment documentation including employment agreements and wage/time records;
- some CALD employers not understanding their employment obligations (and the effects of this lack of understanding being exacerbated by employment of staff from their same ethnic group, or other migrants, usually recent arrivals, who similarly have little understanding of their rights under New Zealand employment law).
The following cases are illustrative of these issues and challenges, and the approaches that ERA members have taken to address these issues and challenges.
This case involved a Chinese applicant employee who had been employed on a work visa, who represented himself. He had raised a personal grievance against his employer, LSG Sky Chefs, for unjustified disadvantage and constructive dismissal. At issue were a number of interactions he had had with his manager. The manager’s ethnicity was not described in the Authority’s determination.
The Member presiding took an enabling approach to assist the Applicant’s access to justice. Paragraph 4 of the determination records:
“QWU’s first language is not English. He represented himself. When he provided his statement of problem he included a written comprehensive timeline of events and a number of relevant documents. I did not require QWU to lodge a formal statement of his evidence as I relied largely on the documentation he had lodged with his statement of problem. I was grateful for the services of an interpreter to assist me to make sure that LSG and I fully understood QWU’s case and his response to LSG’s case. All witnesses from whom I heard evidence during the investigation meeting took a promise to tell the truth and answered questions from me and from the other party.”
The Authority determined that despite the applicant’s claims, the employer had acted fairly and reasonably in all the circumstances at the time. The employer had also “accepted that [the employee] was relatively new to the workforce in New Zealand and that some uncertainty about his rights and responsibilities… may have led to some of his decisions.”
The applicant employee in this case (whose ethnic background was not described) had no written employment agreement for her first year of employment, was not paid wages in a timely manner, was not paid wages due to her, was not paid holiday pay, and was not told about or enrolled in the KiwiSaver scheme. On making a written request to be paid what she was owed, the respondent employer, who was Chinese, “abused and threatened her” after which she resigned. The employee made a claim of constructive dismissal.
In this case, the respondent employer failed to participate in a case management teleconference, failed to provide medical information required to support his claim that he was unable to participate in the Authority’s investigation, and failed to file any evidence. The Investigation Meeting proceeded in his absence, and the Authority ordered him to pay almost $50,000 to the employee, plus penalties.
The applicant employee, who was Chinese, made a claim against his former employer (who was also Chinese), for unpaid wages. A particular focus of the determination was payslips which the employer provided. The strong implication from the determination was that the payslips were not authentic. The employee also denied ever receiving payslips during his employment. The Member made a finding that the employer’s evidence on the employee’s hours of work was not credible.
The Member was unable to determine whether screen shots from WeChat showing three payments of RMB 50,000 each provided by the employee, which the employer challenged as being “forged,” amounted to a premium for employment, contrary to section 12A of the Wages Protection Act 1983. The Member directed that a copy of the determination be provided to MBIE’s Labour Inspectorate.
This case concerned the breach of a broad non-disparagement term in an agreement to settle a personal grievance between a Korean employee and his former employer, a company owned by a Korean director.
While cultural factors are not discussed in the determination, it is likely that these factors had a bearing on the parties’ desire to take this dispute all the way to the ERA, despite the total amount received by the employee (less costs) being $715.14. The matter previously went to mediation which was unsuccessful.
Only one instance of breach was established. That breach was in a phone call between the two parties, where the employer asked the employee why he had lied, asked whether he was sorry and stated that the employee “would keep the ‘shame’ of what he had done forever”. There was no disparagement to any third party. The Authority considered the nature of the breach, its extent, and “the limited damage done” and awarded the employee $800 and $271.56 towards costs (this did not cover the whole amount of costs incurred by the employee).
In this case, concerning a Chinese applicant-employee and a Chinese respondent-employer, cultural factors were explicitly raised by the applicant who said that she had not been paid any wages but did not ask after those wages as it was “difficult for her to ask for payment because the money issue is a sensitive topic in Chinese culture. She did not want to embarrass [the employer] by mentioning it.” Further the Member presiding noted that “There was surprisingly little email or social media documentation filed. Neither party provided any WeChat messages, despite that being how the two met.”
In the end, the Member presiding noted with regard to credibility, “I had difficulties with both parties’ cases… Standing back and looking at the evidence, by a fine margin, I prefer [the employee’s] evidence.” The Authority upheld the employee’s claims in respect of wage arrears; holiday pay; and reimbursement of expenses.
Credibility of the employer was also at issue in this case, which concerned an Indian applicant-employee and respondent company owned by an Indian director. The Authority found a number of inconsistencies in the evidence on behalf of the respondent, including as to whether or not the applicant was employed at all by the respondent.
The employer had previously been before the Authority in relation to another employee (who was Cambodian), where the employer had breached minimum wage requirements and failed to pay out holiday pay and bereavement leave.
This case concerned a Chinese applicant-employee and a respondent company owned by a Chinese director. The case highlights many of the issues and challenges that arise in such cases. Firstly, the Authority struggled with the contemporaneous documentary evidence that was provided by the parties, and with the competing accounts that were provided. For example, there was a dispute over when the employment agreement was provided, and the member had to resort to WeChat messages, that had been interpreted by an accredited interpreter, to ascertain the correct date. It was also unclear from the evidence provided whether Ms Zuo had been employed on a full-time, part-time or casual employment agreement, with the Member stating “I found the total picture confusing” (at ).
Recommendations to address these issues and challenges at the coalface
The investigative nature of the ERA under section 157 of the Employment Relations Act 2000 (“ER Act”) gives it a degree of flexibility in “resolving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities”, which is well-suited to addressing the issues and challenges CALD parties can raise.
ERA Members already make use of this flexibility in making determinations to resolve employment relationship problems. In many of the cases reviewed, the Member presiding made use of the provision at s 160(3) of the ER Act 2000 which states that “The Authority is not bound to treat a matter as being a matter of the type described by the parties, and may, in investigating the matter, concentrate on resolving the employment relationship problem, however described,” and further s 122 which states that “Nothing in this Part or in any employment agreement prevents a finding that a personal grievance is of a type other than that alleged.”
These provisions were used where the pleadings did not relate to “any particular category of personal grievance” (as in Ying Deng v Nancy Wang and Good Future Auckland Ltd  NZERA Auckland 1, where both parties were Chinese and neither was represented).
A key recommendation that was discussed to improve access to justice for CALD parties coming before the ERA was the importance of ensuring that all parties coming in contact with the ERA have sufficient information in their first language to ensure they were aware of the importance of engaging with the process and to understand it from the beginning of the process. This is particularly important given the high number of unrepresented parties who will not be getting adequate advice from a lawyer or employment advocate.
Another recommendation discussed was making the consequences of non-participation in the process more explicit in communications from the Authority. For example, when parties are sent correspondence explaining that they are overdue to file their Statement of Reply, that correspondence could make clearer that the Investigation Meeting can proceed in their absence and that the ERA can find against them even if they do not participate in the process.
An issue raised during the course of the discussion was the impact of cultural factors on parties’ demeanour before the ERA and how this is assessed when making credibility findings – for example, if the party does not make eye contact – is this because their evidence is not credible or is it a mark of respect in that party’s culture and that party is therefore acting respectfully towards the Member presiding?
Further, can cultural factors inhibit parties from presenting evidence which assists their case? For example young Chinese employees struggling to articulate their grievances against older Chinese employees or employers, due to the cultural requirement to show respect to their elders.
Authority Members are keenly aware that cultural factors, experience and knowledge of New Zealand law and life, and fluency in English are all factors that affect the ability of employees and employers from CALD communities to participate effectively and fairly in the Authority processes.
The critical role of lawyers and employment advocates in educating their clients about the role of the ERA, and the consequences of non-participation in the process or a lack of good faith in their participation, was also underscored. In particular, the risk of an adverse determination by the ERA, and the loss of face that can result, can be a useful reminder to clients of the importance of complying with their employment obligations and to mediate or settle disputes that would otherwise go before the ERA.
In such an important jurisdiction as employment, there clearly is recognition and leadership by Members of the need to ensure equal access to justice for CALD parties.
Thanks to Rosie Judd of Chen Palmer who attended the seminar and helped me write up what was said.
Mai Chen is Managing Partner of Chen Palmer, Chair of the Superdiversity Institute for Law, Policy and Business (which includes NZ Asian Lawyers), and Adjunct Professor at the University of Auckland Law School.