Dumb things that come up in ERA cases (and why they should not matter)
The Employment Relations Authority (ERA) is meant to be practical, investigative, and focused on the substantial merits. Yet in real cases, a handful of recurring arguments and tactics keep showing up that distract from what matters: whether the employer acted as a fair and reasonable employer could, and whether the employee suffered loss as a result.
Below are nine "greatest hits" I see constantly. None of them should be determinative. I will add more as they come up.
1. "Why didn't you complain at the time?"
This one turns up whenever there were meetings, warnings, investigations, or a dismissal process with defects. The employer (or their representative) points to the fact the employee did not object at the time, and tries to treat that as a concession that the process was fair.
That is not how fairness works. Employees are rarely trained in employment law. They are usually outnumbered, stressed, and trying to keep their job. Many do not even know what they can ask for, let alone what they can insist on.
In Allen v C3 Ltd [2012] NZEmpC 124, Judge (now Chief Judge) Inglis rejected the idea that the employee's failure to raise concerns at the time meant the process was acceptable. The Court accepted that an employee (and their representative at the time) might simply be unaware of what had occurred behind the scenes and therefore could not reasonably have objected.
2. "You did not look upset enough, so your hurt and humiliation must be exaggerated"
Another classic. The employee gives evidence of distress, anxiety, embarrassment, or loss of dignity. The employer tries to knock it down by saying the employee was too calm, too measured, too stoic, or did not present the "right" type of emotion at the investigation meeting.
This approach is both unfair and unsafe. It penalises restrained people and implicitly rewards performative distress. It also encourages a kind of theatre that has nothing to do with principled decision-making.
Chief Judge Inglis has cautioned directly against this mindset in her paper Compensation for humiliation, loss of dignity and injury to feelings (June 2018). She notes:
"Preconceptions as to the sort of evidence that will suffice should be avoided."
The point is simple: medical evidence is not required. The best evidence will often be from the affected person, sometimes corroborated by someone who knows them well. And critically:
"Different people experience and manifest harm in different ways."
If the Authority (or Court) accepts that a personal grievance caused non-monetary harm, the task is to assess the nature, extent, and causation of that harm under s 123(1)(c)(i) of the Employment Relations Act 2000. It is not to award points for crying, shaking, or "looking upset enough".
3. The "one-sided story first" problem in witness statements
The standard timetable often means the employee goes first: the applicant must produce a full set of witness statements and documents, and only then does the employer respond. In theory, this is efficient. In practice, it can be distortive.
What commonly follows is not a coherent counter-narrative, but a paragraph-by-paragraph denial. The hearing then becomes a slow grind through tiny disputes, instead of an investigation of the key issues.
A better structure (in many cases) would be:
- Joint agreed chronology and agreed bundle (as far as possible).
- Simultaneous exchange of witness statements.
- A short, strict "reply" statement only where genuinely necessary (for new matters), limited in length and scope.
- A joint list of issues and a short roadmap from each side.
The goal is not more paper. The goal is cleaner paper: fewer ambushes, fewer tactical denials, and a clearer story for the Authority to test.
4. Death-by-cross-examination
Some employer representatives spend hours cross-examining the employee on trivialities. Not to clarify the real issues, but to burn time. The predictable result is a hearing that runs into the evening, with less time left for scrutiny of the employer's witnesses and decision-making.
The ERA is not a theatrical courtroom. It is an investigative forum. Cross-examination is permitted, but it must have boundaries.
The Authority's own Practice Note makes this explicit: cross-examination must be "relevant, necessary, courteous and not repetitive". If it is not, it should be shut down.
5. Pagination chaos: when page 1 is a cover sheet
This is one of those "death by a thousand papercuts" problems that looks small until you are in the room. Sometimes the Authority prints hardcopies in a way that changes page numbering across sets. Sometimes a party's bundle is produced with a cover page numbered as page 1. Then everyone is trying to find "page 37" but there are three different page 37s in circulation.
It is not a principled reason to prefer one party's narrative over the other, but it does slow hearings down and it creates avoidable confusion. If you are going to cite documents, you need stable references.
What should happen instead
- Use a single PDF bundle with an index, and make sure the page numbers are printed on the page (not just the PDF viewer page count).
- Do not page-number the cover sheet. Start numbering from the first substantive page.
- If the Authority is going to print, ask at the start which page numbering system will be used when counsel refer to documents.
This is basic document hygiene. When it is not done, the hearing time gets burned on scavenger hunts.
6. "Please do not read your written submissions out loud"
At times, representatives are permitted to read closing submissions word-for-word. The rest of the room then sits through a 30-45 minute audiobook, even though everyone already has the document in front of them. The hearing then runs late, and real issues get squeezed.
The Authority's own guidance expects concise written closing submissions, and contemplates that any oral address will be brief. If the submissions are written, the point of speaking is to highlight the key propositions and where they matter - not to recite the document.
What we ask for
- Written closings: short, structured, and tied to the issues.
- Oral address: a brief roadmap (what matters, why, and where it is in the evidence).
- Time allocations: agreed at the start of the day so nobody can chew up the clock.
7. The late-document ambush
In almost every file, there is some version of this: the parties build a common bundle, everyone thinks the documentary record is stable, and then - at or near the investigation meeting - the employer produces "new" emails, texts, or internal notes. Sometimes those documents existed all along. Sometimes they are selectively extracted. Either way, it wastes time and it is unfair.
The Authority's process depends on basic disclosure discipline: documents should be exchanged as they are provided to the Authority. If material is held back, it undermines efficient investigation and pushes parties into reactive, paragraph-by-paragraph disputes.
What should happen instead
- At the case management conference, set a hard deadline for the bundle and witness statements.
- No new documents after the deadline without leave, and without a proper explanation.
- If truly new material arises, the other party must be given a fair opportunity to respond (which may require an adjournment).
"Trial by ambush" is not part of natural justice. It is just bad process.
8. "I put to you..." (repeated 40 times) is not cross-examination
Cross-examination in the Authority is supposed to test evidence and clarify the real disputes. It is not theatre, and it is not a place for a representative to deliver a speech in 45 separate installments.
When someone says "I put to you" over and over again, what they usually mean is: "I do not have a clean question, and I am hoping repetition will do the work." It does not. It just chews time and annoys everyone in the room.
What should happen instead
- Put a proposition once, clearly, and let the witness answer it.
- Use short, leading questions tied to the issues that actually matter.
- If there is a document, take the witness to the page and the line - do not argue about it in the abstract.
- Move on. If the point has landed (or failed), stop digging.
The Member can usually see what is going on. Repetition does not create credibility. It creates delay.
9. "Frivolous and vexatious" is not a vibe - it is a high-threshold statutory power
Employer representatives love to throw around the phrase "frivolous and vexatious" like it is an insult that proves something. It is not. In the Authority, it is a specific (and serious) power in the Employment Relations Act 2000: Schedule 2, clause 12A.
The Employment Court has made it clear that "frivolous" does not mean "weak" or "we think we will win". It means the matter must be impossible to take seriously. And the Court has also confirmed that clause 12A is directed at dismissing a matter (or a defence) - not cherry-picking a few paragraphs and trying to strike out an opponent's case by stealth.
The leading discussion is Lumsden v SkyCity Management Ltd [2015] NZEmpC 225. In that case, Chief Judge Inglis (then Judge Inglis) analysed clause 12A, explained what "a matter" means, and why the Authority cannot dismiss only part of a matter under clause 12A.
The Authority itself (and its training materials) also treats these applications as exceptional: high threshold, made separately, and only with compelling grounds. See Tuning in to the Employment Relations Authority investigation process (NZLS CLE, 1 November 2024).
So when a respondent stands up and says "this is frivolous and vexatious" as a throwaway line, ask the obvious question: "Are you making a clause 12A application, with proper grounds, or are you just grandstanding?"
To be continued
I will keep adding to this list as more nonsense surfaces in real files. If you have seen one, you already know there are many.
Useful practice materials
Note: This article is general commentary and is not a substitute for legal advice on your specific facts.
