Forum explores retrospectivity, employee contribution, future of employment law
More than 200 people attended the Burning Issues in Employment Law Forum on 15 October to discuss New Zealand’s most significant employment law changes since the introduction of the Employment Relations Act in 2000.
The forum brought together senior employment law practitioners and members of the judiciary to examine legislative reforms, how they apply to existing disputes, and their implications for personal grievance remedies.
Host and former Employment Committee convenor Catherine Stewart opened the event by acknowledging the extent of the changes.
“It’s fair to say that employment law has been through the fire,” Stewart said. “Today, we look at what has come out on the other side.”
Stewart, who has chaired the forum for the past 12 years, described the event as a collaborative discussion among employment law practitioners.
“It’s almost like a brainstorming of employment law minds on the issues of the day,” she said in a statement.
Chief Employment Court Judge Inglis delivered a pre-recorded opening address examining the future of employment law, including access to justice, proportionality, and the growing role of artificial intelligence in employment decisions. She also asked whether existing legal classifications adequately reflect changing employment relationships.
Judge King, who answered questions from attendees, said the Employment Court had not yet considered substantive cases under the February reforms. She noted that cases currently before the court dated back to 2022 and encouraged practitioners to consider removal applications where appropriate.
The forum also examined uncertainty surrounding the retrospective application of the Employment Relations Amendment Act.
MinterEllisonRuddWatts partner Gillian Service discussed the absence of transitional provisions governing changes to remedies, particularly where disputes span the 21 February commencement date. She explained that determining when a cause of action arose could affect whether employees retain access to reinstatement.
A central session featured a structured debate between Philip Skelton KC and Simon Mitchell KC, moderated by Kylie Dunn, on the meaning of employee contribution under the amended legislation.
The provisions remove reinstatement and compensation under s 123C where employee conduct contributed to circumstances giving rise to a personal grievance.
Mitchell emphasised the need to assess blameworthiness individually, while Skelton questioned whether employees who acknowledge misconduct during disciplinary proceedings could inadvertently compromise their entitlement to remedies.
The debate concluded without a settled interpretation of the new provisions, reflecting continuing uncertainty among practitioners.
