RESEARCH REPORT: ADJUDICATION IN THE EMPLOYMENT TRIBUNAL
Volume 25 Number 3

October 2000

The database of decisions
A database of Employment Tribunal adjudication decisions (and Employment Court judgments) has been
under continuous construction at the Industrial Relations Research Centre of the Department ofManagement at the University of Otago since 1995. In recent years, the New Zealand Law Foundation
has provided generous financial support to the project, allowing for the accelerated development of amore comprehensive database.
The database of employment decisions begins with the case summaries published by the Department ofLabour’s Employment Institutions Information Centre and made available as a part of the Brooker’s
employment law package. Having extracted the data from those summaries, our research staff thenexamine the decisions themselves for data on additional variables.
The variables captured for the database are in several categories: the issues involved in the case;characteristics of the parties, including gender, occupation, industry, and representation; characteristics ofthe Tribunal adjudicator, hearing and decision, including for example the gender of the adjudicator,
location and length of the hearing, and length of the decision; and various measures of the outcomes of
the cases – who won, who lost, and the nature of remedies awarded, if any.
A number of academic and practitioner papers have issued from this project to date, including the first“facts and figures” report published in the corresponding issue of the New Zealand Journal of Industrial
Relations in 1999 (McAndrew, 1999). In that paper, relying on data for the years 1992 through 1997, I
reported on the general profile of the Tribunal’s caseload and detailed outcomes for personal grievancecases, highlighting factors – including the nature of representation – that appeared to be associated in one
manner or another with grievance outcomes.
The intent of this present report is to share some further, updated data on Tribunal decisions with theindustrial relations and employment law community, illustrating the range of case issues being decisionedby the Tribunal, and highlighting some apparent trends and associations. The particular focus of thispaper is the body of Tribunal adjudication decisions on personal grievance claims over dismissals forGrievance Outcomes Frequency Percent
Grievant Won

1420

64.3

Grievant Lost

788

35.7

TOTAL

2208

100.0

Again, I will return to this theme of declining success rates for grievants or applicants in due course,
particularly in relation to claims surrounding dismissals for misconduct, where the trend seems quite
marked.
In an adjudication case where the applicant has been successful to the extent of a finding that he or she
has a personal grievance, then remedies are likely to follow.
The available remedies, depending on circumstances, are reinstatement of the applicant to a job,
reimbursement of lost remuneration, compensation for loss of tangible benefits, and compensation forhumiliation, loss of dignity and injury to feelings. The outcome of a case can be measured in terms of any
or all of these remedies, in addition to being measured on the straight "win- lose" dimension represented
by Tables Two and Three.

Table Four: Compensation for Humiliation, Loss of Dignity and Injury to Feelings 1992 - 1999

Level of Compensation

Frequency Percent

No Compensation Awarded31816.1Up to $5000

1147

58.0

Between $5000 and $10000

398

20.1

Over $10000

115

5.8

TOTAL

1978

100.0

Of the available remedies, compensation for humiliation, loss of dignity and injury to feelings is, at leastin some respects, the most useful measure of decision outcomes, both because it is almost universallysought by grievants and it is arguably the remedy over which the Tribunal has the greatest discretion.
Table Four shows the distribution of compensation awards under this head to grievants successful inwinning their cases in adjudication in the years 1992 through 1999. The major movement from the data
published last year for decisions issued from 1992 through 1997 was an increase in the percentage ofsuccessful grievants awarded no compensation from 12.6 percent for the period to 1997 up to the 16.1
percent figure when 1998 and 1999 decisions are added. A closer look at dismissal decisions
The sense that applicants are doing less well as time goes by is confirmed by looking at the percentagesof adjudication decisions of all types won by applicants over the years: 69.7 percent in 1992, 63.9 percent
in 1993, up a bit to 66.5 percent in 1994, but thereafter a gradual but consistent slide: to 59.7 percent in
1995, then 58.7 percent in 1996, 56.9 percent in 1997, 55.1 percent in 1998, and finally 54.0 percent in
1999. Interestingly, figures for 2000 indicate a reversal in this trend, although the entries in the databasefor this year are obviously yet to be completed.
The extent of the decline over time naturally raises the question why it is happening. I am not yet in aposition to give any real answers to that question, but it is interesting to examine the phenomenon in alittle more detail.
Last year’s report looked at factors that appeared to be statistically associated with personal grievanceoutcomes – personal grievances being the largest part of the Tribunal’s caseload – and found that thevariable that was the best predictor of the win – lose outcome was the nature of the grievance. So, inlooking for more detailed trends, that would seem to be the place to start. Table Five shows grievanceoutcomes by type of grievance for the years 1992 - 1997, borrowed from last year’s paper, set alongside
the same figures but with the numbers for 1998 and 1999 incorporated, so 1992 - 1999.

Table Five: Grievance Outcomes by Type of Personal GrievanceType of Personal Grievance

1992-1997

1992-1999

WinWinLose

Lose

Dismissal:
Constructive Dismissal

Count
174
198
232
268
Percent (46.8%) (53.2%) (46.4%) (53.6%)

Dismissal:
Misconduct

Count
Percent

416
239
511
340
(63.5%) (36.5%) (60.1%) (39.9%)

Dismissal:
Poor Performance

Count
Percent

303
62373
85(83.0%) (17.0%) (81.4%) (18.6%)

Dismissal:
Redundancy

Count
Percent

302
121
408
179
(71.4%) (28.6%) (69.5%) (30.5%)

Dismissal:
OtherCountPercent

168
104
281
169
(61.8%) (38.2%) (62.4%) (37.5%)

Other Personal GrievanceCountPercent

57
64
84
87(47.1%) (52.9%) (49.7%) (50.3%)

What is apparent on the face of Table Five is that the success rate for grievance applicants has declinedwith the addition of the 1998 and 1999 case decisions in each of the three major dismissal case categories
that come before the Tribunal - dismissals for misconduct, dismissals for poor performance, anddismissals for redundancy. Of these, the most marked decline with the addition of case decisions for thelast two complete years is in the category of dismissals for misconduct, which is also the largest category
in terms of numbers of dismissals, as it has been throughout the life of the Tribunal. Against a base ofover 400 case decisions for applicants in the period through 1997, an overall decline in the success rate ofalmost 3.5 percentage points over an additional two years is quite significant.
For completeness, Table Six sets out the distribution of compensation awards for successful grievants forthe full period 1992 through 1999. The addition of case data for 1998 and 1999 causes no marked
changes in the patterns that were reported last year through 1997, and so the discussion of compensation
won’t be taken any further in this report.

Table Six: Compensation for 'Humiliation, Loss of Dignity, and Injury to Feelings' by Type ofGrievance, 1992-1999

Level of Compensation
Type of Personal GrievanceNone

Up to $5000$5001 $10000

Over$10000

Dismissal:
Constructive Dismissal

CountPercent

35(15.1%)

127(54.7%)

57(24.6%)13(5.6%)

Dismissal:
Misconduct

CountPercent

68(13.3%)

307(60.1%)

105(20.5%)31(6.1%)

Dismissal:
Poor PerformanceCountPercent

34(9.2%)244(65.0%)78(20.9%)17(4.6%)

Dismissal:
Redundancy

CountPercent

43(10.5%)243(9.0%)96(23.5%)26(6.4%)

Dismissal:
OtherCount
Percent

37(13.2%)

178(63.3%)

52(18.5%)14(5.0%)

Other Personal Grievance CountPercent

14(16.7%)

46(54.8%)

10(11.9%)

14(16.7%)

Focusing on misconduct dismissal decisions
As noted above, case decision data for each of the three major bases of dismissal have shown a decline ingrievant success rates. Table Seven demonstrates that this has been pretty consistently true throughout thelife of the Employment Tribunal, again most dramatically in the case of dismissals for misconduct. While
grievant wins have trended downward on a slightly rocky road over time in the cases of dismissals forpoor performance and redundancy, wins by applicants grieving their dismissals for misconduct have
dropped quite markedly in several dramatic steps, falling fully 30 percentage points over the period from1992 through 1999.
Grievants enjoyed a high of some 77 percent success in grieving misconduct dismissals in the first fullyear of the Tribunal, 1992. In approximate figures, this dropped by about 10 percentage points to the mid60s percent in 1993 – 1994, and then by about another five percentage points to 60 percent for thefollowing two years, 1995 – 1996, and then another drop of about 10 percentage points to around 50
percent for the two years after that, 1997 – 1998, and finally another five percent drop to the mid-40s
percent in 1999; more than 30 percentage points in seven years.

Table Seven: Employee Win Rate by Reason for Dismissal 1992-1999
Reason for
Dismissal199219931994

1995

1996

1997

1998

1999

Dismissal:
Misconduct6477.1%

7866.1%9665.8%6560.2%6860.7%4551.1%5050.5%4544.6%

Dismissal:
Poor
Performance

5192.7%5985.5%5980.8%5576.4%3473.9%4690.2%4076.9%2970.7%

Dismissal:
Redundancy4876.2%4170.7%6975.8%4863.3%4975.4%4767.1%

5465.1%5163.8%

The decline in grievant success rates over time holds true for most, but not all, of the several subcategories of the “misconduct” category in the database, and the fall is more dramatic in some subcategories than in others. “Disobedience” offences have seen the most substantial decline in win rates forgrievants, falling in a reasonably straight line from 76 percent success in 1992 to 50 percent in 1995 to 40
percent in 1997 to about 30 percent in 1998 and to slightly under 20 percent in 1999. At the otherextreme, there have been some relatively minor variations year to year in success rates for applicantsgrieving dismissals for alleged theft offences, but no substantial change over the life of the Tribunal.
Workers grieving their dismissals for theft had a success rate of 56 percent in Tribunal adjudications in
1992, a success rate of 54 percent in 1999, and an overall success rate for the period of 59 percent.
Looking for explanations
In presenting last year’s paper, I reported the results of regression analyses which tested for statisticallysignificant associations between certain case variables associated with case types, representation factors,
the parties, and the adjudicator and hearing details as independent or causal variables and case outcomesas dependent variables. As previously noted, at least for personal grievances, of the variables in the database, case type showed up as the most powerful predictor of win – lose outcomes. (It is noted, of course,that there is no measure of the substantive merits of the case in our database, so our analyses largely
disregard the most important determinant of the outcome of a case). In any event, for the present report,
similar regression analyses were run for just the misconduct dismissal cases.
A regression analysis is a statistical technique that can divide a sample (such as grievance outcomes) firstaccording to the variable (occupation of grievant, whether represented by a lawyer or by a lay advocate,
the length of the hearing, and so on) that is statistically most strongly associated with the outcomes. The
analysis then goes on to separate each sub-sample created by that first division into still smaller subsamples according to the variable that is statistically next most strongly associated with the outcomes ineach subsample.

Figure One is too large to display correctly in this window: click here to open a new browser window inwhich to view it.
The process continues until all variables associated with the outcomes have been recognised. For thepresent report, the regression technique was applied to the sample of win – lose outcomes in unjustified
dismissal personal grievance adjudications for the years 1992 – 1999, where the reason for dismissal wasmisconduct.
This regression analysis endorsed what was apparent from the frequencies. As is figuratively represented
in Figure One, outcomes were statistically associated with year of decision. The statistical package foundthe years 1993 through 1996 to be sufficiently similar in win–lose outcomes for dismissal adjudication
decisions involving dismissals for misconduct to be grouped together, but, as a group, sufficiently
dissimilar as to be distinguished from 1992 and also from the period 1997 through 1999. In other words,
there were three statistically distinguishable periods in terms of applicant success rates in dismissal formisconduct grievances, with the rate of success diminishing in each successive period. It is noteworthy inlooking at Figure One, and consistent with the analysis in last year’s report, that there were further
explanatory factors seemingly associated with outcomes in the middle period, 1993 through 1996. While
there are, as again discussed in last year’s paper, many possible explanations for the apparent associations
with those factors, it is at least a less complicated picture now that those influences are no longer apparent
in the years beginning 1997. Concluding comment
This paper has presented an update on the Employment Tribunal’s adjudication case profile and theoutcomes for parties in the Tribunal’s “bread and butter” personal grievance caseload.
Among the principal findings was a gradual decline in applicant success rates in the Tribunal’sadjudication jurisdiction. Focusing on personal grievances, it was seen that applicant success rates had
dropped over the life of the Tribunal for the three major types of personal grievance dismissal cases:
those alleging unjustifiable dismissal for reasons of misconduct, poor performance, and redundancy. In
the case of dismissals for misconduct, grievant success rates were seen to have fallen by about 30
percentage points in a series of dramatic steps between 1992 and 1999, although there is a hint on
incomplete figures that this may have turned around somewhat in the year 2000.
Regression analysis of case variables against outcomes in misconduct cases confirmed the changing
fortunes of the parties over time, but offered few other clues as to why applicant success rates have beenin such consistent decline. Of course, that does not mean that there are not explanations; only that theexplanations are not available in the case decision data that we keep and that are the subject of thisresearch note.
Over the period of existence of the Tribunal, there have been changes in influential Court personnel, andin Tribunal Membership, and some shifts in the political winds. Perhaps relatedly, there have been anumber of particularly significant case decisions during the past decade that trained observers might see
as turning points, and a matching of these seminal cases to the pattern of the data, while beyond the scopeof this note, might be illuminating. In terms of explanations for the phenomenon of declining applicant
success rates there remains also the unmeasured factor of the merits of applicants’ cases, and thepossibility that the general level of relative merits of cases coming before the Tribunal in adjudication
might have changed over time as, for example, employers become more knowledgeable about
employees’ rights and due process.
One suspects that the explanations for declining applicant success rates, particularly dramatic declines ofthe magnitude observed in misconduct dismissal cases, are to be found in these sorts of factors. No
obvious explanations are apparent in the raw case data.
Reference
Bartlett, Philip et. al. (eds) (2000), Brooker’s Employment Law Wellington: Brooker’s Limited.
McAndrew, Ian (1999), Adjudication in the Employment Tribunal: Some Facts and Figures on Caseload

and Representation. New Zealand Journal of Industrial Relations, 24(3): 365-382.