Source: Employment New Zealand
You have been through a dispute resolution process with your employer; they have agreed to compensate you, but you haven’t received anything so far. So how do you enforce a payment from your employer?
There are several dispute resolution processes in which an employee can be compensated financially. The way in which a payment can be enforced vary among these processes:
Mediation is where an independent person called a mediator helps resolve an employment relationship problem in a semi-formal and confidential environment. A mediator will help you identify the main issues and find potential solutions. The aim is for you and your employer to come to an agreement. We provide free mediation services to all employees and employers.
If any compensation is agreed as a result of the mediation, it is recorded in a record of settlement. Once you, your employer and the mediator sign off a record of settlement, it becomes final and binding on the parties, and enforceable in the Employment Relations Authority (ERA) or the Employment Court. Even if an agreement is reached outside of mediation, and later signed by a mediator, it can still be enforced in the same way.
It is important to note that anything said during mediation and all documents prepared for the mediation, including the terms of any resolution specified in records of settlement, are confidential.
If your employer hasn’t paid you as agreed in the record of settlement, you may apply to the ERA or the Employment Court to enforce the agreement. It is sometimes a good idea to contact the mediator first for help with encouraging the employer to comply with the agreement before going to the ERA or the Employment Court.
Employment Relations Authority
If you and your employer cannot reach an agreement through mediation, you can take the matter further to the ERA.
ERA decisions are made in the form of an oral or written determination. A determination is legally binding and issued to both you and your employer. Unlike a mediation resolution, a determination is not confidential – it is a public document, unless you or your employer had requested a non-publication order of the ERA before the determination was issued.
Copies of past determinations and summaries of employment law cases are published on our employment law database.
If the employer fails to make a payment to you as in the determination, you can:
- ask for a certificate of determination from the ERA and file an application in the District Court for enforcement, or
- apply for a compliance order from the ERA.
If you are unhappy with an ERA determination, you can file a challenge to the determination with the Employment Court. You must do this within 28 days of the issue date of the ERA determination.
Court judgements are available to the public, unless they are subject to suppression.
Once you have received a court judgment, you can write to the registrar to ask for a certificate of judgment for monetary remedies. A judgement is legally binding and enforceable. You can then either:
- ask the Collections Unit at your local court to help you collect the debt
- ask a debt collection agency if they can help you collect the debt (they may charge a set fee or a percentage of the debt)
- ask a lawyer to enforce the debt for you, or
- apply to the Employment Court for a compliance order.