File a challenge

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File a challenge in the Employment Court if you are dissatisfied with a written determination issued by the Employment Relations Authority.1 This is also called challenging a determination.

You will be called the plaintiff and the person or organisation you are making the claim against will be called the defendant.

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File a challenge flowchart 1

Form 1: Challenge to determination of the Authority [DOC, 49 KB]
Form 2A: Application for leave to extend the time [DOC, 46 KB]

File a challenge flowchart 2

Find out more about completing, filing and serving documents and using professional help

Notes

  • You must say if you are seeking a de novo hearing (challenging the whole determination), or a hearing based on particular errors of law or fact (challenging parts of the determination), commonly called a non de novo challenge.2
  • When filling the form you must follow the requirements as to content set out in regulation 11 of the Employment Court Regulations 20003.
  • You cannot challenge a determination about the procedure that the Employment Relations Authority has followed.
  • If you want to file a cross-challenge to a challenge already filed with the Court you should do so within 28 days from the written determination issued by the Employment Relations Authority.  Find out more about revocation of practice direction regarding cross-challenges dated 1 May 2014.

What happens after you have initiated a challenge

  • You must advise the registry, by a letter or email, when and how you served the defendant.
  • The defendant will have 30 days from the date of service to file their statement of defence. The statement of defence will be served on you at the address of service you provided in your statement of claim.
  • Once the defence is filed the registry will organise a directions conference with a judge.
  • If no defence has been filed you will be asked by the registry to file an affidavit of service. A judge will issue a direction as to what will happen next.  You might be asked to file submissions or to attend a hearing.

Find out more about what happens before a hearing is held.

Get the form for an affidavit of service

Will the Employment Relations Authority's determination be stayed?

Your challenge does not automatically stay (stop) proceedings4, including their enforcement.

Talk to the other party and see whether an agreement as to stay can be reached.  It is not unusual for a judge to grant a stay by consent, on condition that an agreed sum is paid into the Employment Court trust account pending resolution of the challenge.

File a separate stay application, either with the Employment Court or with the Employment Relations Authority, if you want the Court or the Authority to make an order to stay proceedings. An order to stay proceedings prevents an action (such as enforcement of a debt) from proceeding further.

Time limit

You may wish to file any application for stay together with your challenge to determination.

Filing fee

It’s free to apply for an order to stay proceedings.

Documents

You need to file the original and two copies of the Form 14 application for stay of proceedings.

Find Form 14 on our forms and fees page.

Application for leave to extend the time for filing a challenge

File an application for leave to extend the time5 for filing a challenge if you realise that you will not be able to file a challenge within 28 days of the date of determination (or if this time has already expired). File an original and two copies of the application.

Your application must state the grounds and the reasons for seeking an extension and should be accompanied by:

  • an affidavit in support of your application to verify the grounds for your application (original and two copies)
  • a draft challenge – statement of claim Form 1 (original and two copies)
  • three copies of the Employment Relations Authority's determination.

Time limit

There is no time limit to file this application. However, you should file it as soon as you become aware that you will not be able to file a challenge on time; or as soon as the time for filing it has expired.

Filing fee

It’s free to apply for leave to extend the time for filing a challenge.

Documents

You need to file the original and two copies of the Form 2A application for leave.

Find Form 2A on our forms and fees page.

Challenges in respect of dismissal of frivolous or vexatious proceedings

File a challenge against a determination of the Employment Relations Authority that dismissed your matter as frivolous or vexatious.6

If a judge finds that your matter was not frivolous or vexatious, the judge will order the Authority to investigate and determine the matter.

Time limit

File your challenge within 28 days of the date on which the matter was dismissed by the Authority.

Filing fee

You must pay the filing fee before or at the time of filing.

Documents

You need to file the original and two copies of the Form 1AA Challenge in respect of dismissal of frivolous or vexatious proceedings.

Find Form 1AA on our forms and fees page.

Footnotes

  1. s 179 Employment Relations Act 2000 (external link)
  2. s 179 Employment Relations Act 2000 (external link)
  3. reg 11 Employment Court Regulations 2000 (external link)
  4. s 180 Employment Relations Act 2000 (external link)
  5. s 221 Employment Relations Act 2000 (external link)
  6. s 178A Employment Relations Act 2000 (external link)

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