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As a result of this hearing, it is probable that WINZ will accept that Biomed is a fundable treatment as long as the elegibility criteria are met. These criteria will include a formal medical diagnosis from an unbiased doctor, the need for treatment, and improvement with treatment.

Given that so many people have been declined, Buckingham Law Barrister, Simon Buckingham, who is himself Asperger’s, is willing to take on cases to appeal to WINZ for funding for Biomed as well as backdating arrears. “The welfare of all those people on the Autistic Spectrum is my priority, and if the treatment works and helps get people off benefit and into the workplace, then everyone gains.” he said.

If you have had issues in regards to Biomed treatment and WINZ declining funding, please e-mail biomed@buckinghamlaw.co.nz

New Zealand has a very advanced system for dealing with personal injury which many consider to be the best in the world. Rather than developing a culture of litigating over any injury or accident, ACC basically removes that need. There are times where this has its disadvantages, but the result is that New Zealand is not a country where there is a high amount of litigation.

So. What is ACC? The Accident Compensation Corporation is a Government department that is set up to support people who have accidents. This area covers personal injuries caused by accidents, medical and treatment errors, workplace accidents and various other areas. However, it does not cover pre-existing and/or degenerative conditions, infections or diseases, or accidents outside New Zealand, except in very specific and limited circumstances. The majority of ACC claims are put in by the GP who sees the claimant, and most claims end there. However, if you need further support, including in some instances wages, transport, physiotherapy or other medical treatment, or even home help, ACC is there to support.

You have had your accident, and your Medical Practitioner has put in the claim. Remember that you need a Medical Practitioner to file your initial claim. ACC then approve or decline cover, and write to you to let you know. This is a decision letter, and usually the first you will receive in any specific claim. If you then need further support, ACC will usually do a more formal assessment, and work out what you need and for how long. They will usually also do an Individual Rehabilitation Plan which is mutually agreed between you and your ACC case manager.

At this point it is worth commenting that ACC is a very complex area of law, and the Accident Compensation Act 2001 runs into many hundreds of sections. There are many factors to a claim, including when it happened, the cause of the accident, and what entitlements are due. Each factor can affect the claim itself, as well as any entitlement.

Now your claim is in, you receive a decision that you do not agree with. This could be declining the claim, declining some form of support, or any other decision. What do you do at this point? The first thing to do is seek professional legal advice. See an ACC specialist, and preferably a lawyer. ACC is one area of law where you do not need a practicing certificate from the New Zealand Law Society, or any other form of registration to represent people. Whilst some non-qualified advocates are good, there are those who are less professional than may be expected. As such, before seeing an ACC advocate, ask what their qualifications are, and what experience they have. Ideally, instruct a practicing lawyer who does ACC work, as then you are covered by the New Zealand Law Society and the Lawyers and Conveyancers Act 2006. If then you are not treated appropriately, you have some recourse to have the issues remedied. Also, make sure that any fee is reasonable, and ideally try to establish a fixed fee that you agree to. Lawyers are regulated by the profession, so whilst they may seem like they are more expensive, they often are a lot cheaper in the long run, as their costs, fees and the time put into a case are regulated by the New Zealand Law Society. Also, bear in mind that if the matter has to go for review or court hearing, it is usual for ACC to cover some costs in accordance with a statutory Schedule of Fees, so the costs can be substantially reduced.

Once you have your representative, you need to apply for a review of decision. This is critical, as you only have 3 months to lodge your application for a review. When lodging your application for a review, you need to give information of the decision you are applying to be reviewed, and the reasons for the review. This does not have to be detailed, but the more information given, and the clearer the reasons, the better.

When the application for a review is received, the decision is looked at again by ACC to make sure that they are happy that it is correct. They may at this stage change their decision, in which case you can then withdraw the application for a review. However, if it goes forward for review, the matter is passed on to Dispute Resolution Services Ltd who conduct the reviews. This is supposed to be an independent company, but as it is 100% ACC owned, you can draw your own conclusions as to precisely how independent the company is from ACC. However, most of the reviewers are legally trained and very experienced, and whilst many people argue that they are not completely impartial, they certainly do strive for a large degree of independence. It is worth remembering though that many of the reviewers have come themselves from ACC, and so there is an argument that as they have been trained to consider the legislation from an ACC perspective, they will tend towards ACC decisions. However, the law states that the review is the first step, so win or lose, this needs to be done.

At the review hearing, evidence may be submitted and extra information given. The reviewer can then go away to make a decision, or can adjourn for more information. Sometimes the decision will be ordering ACC to investigate further and re-issue their decision. It is worth remembering though that whilst the majority of cases do not succeed at review, there is still the option to appeal to the District Court, then the High Court (if you are given leave to appeal), and even to the Court of Appeal (again, if given leave to appeal). If you have instructed a lawyer, they will advise you more impartially as to your chances of success, and whether it is worth taking on appeal.

To summarise:

Seek legal advice as soon as possible.

Submit the application for review as soon as you can, but definitely within three months of the decision.

Be courteous, polite and co-operative to ACC, as they have the right to seek information to make a decision.

Keep records of everything and make sure you record any conversations with people linked to your injury.

Whilst most employees and employers are really keen to maintain a good relationship, there can be issues with bad employees. Perhaps someone is turning up late, or is not doing the job. The question is what can you do about it? The Employment Relations Act 2000 seems to side with the employees more than the employers, and so it can be very tough.
The first thing to remember is before taking any formal action (or even informal action), seek legal advice. If you tell an employee that they are lazy and need to pull their head in, they can possibly complain that you have not followed due process and that this is workplace bullying or discrimination. Not a good position to be in.

If you do have a genuine issue with an employee, you have to follow a process. You cannot just drag them on the mat and tear strips off them. That could be workplace bullying and may be grounds for a personal grievance. You inform them (ideally in writing) that you wish to discuss their performance with the specific issue in mind, and that they can bring a representative or support person with them. You also should have someone in the room who can confirm you are following the correct process. You then list the concerns, and have to listen to their reasons. Once done, you then should look at training or a plan to improve this behaviour over a specified reasonable period.

If the problem continues, you need to then start with the warning processes. You always put in writing to them what has been discussed and what has then been agreed. Ideally, ask them to confirm that this is an accurate record of what happened by asking them to sign off on it being a true reflection of the meeting. You need to state that this is a verbal warning, written warning or final written warning, and how long the warning will stand for. This is usually for about 6 months.

If after the final written warning the issues persist, you then may be able to terminate the employment if there is no good reason for the continuation of behaviour. However, you have to be careful that they are treated with respect and given all opportunity and support to improve. Also, ensure that you have run the steps you are taking through with a qualified employment lawyer.

If you do terminate the employment contract, you need to pay outstanding holiday pay immediately. It is also good practice to pay any outstanding wages or other money as quickly as possible. This saves continued contact, and reduces the bad feeling, and the chance of a personal grievance being raised.

Remember the golden rules…

Always be fair and courteous
Allow an opportunity for them to speak and be listened to
Allow them an opportunity to improve (with training where appropriate)
Allow them to attend meetings with representatives
Keep it cordial and polite, whatever the provocation.
If terminating, pay what is owed quickly and fairly.

IF IN DOUBT SEEK LEGAL ADVICE.

URGENT – IF IN DISPUTE WITH AN EMPLOYER, SEEK LEGAL ADVICE QUICKLY. YOU HAVE 90 DAYS TO NOTIFY THE EMPLOYER OF YOUR INTENTION TO RAISE A PERSONAL GRIEVANCE.

The point above has to be kept in mind. This is so urgent, and many personal grievances fail as they are out of time. However, in certain circumstances, the Employment Relations Authority will allow a personal grievance out of time.

There are many possible reasons for having an issue with your employer, and whilst the vast majority of employers play fair, you get a few who think that it is their right to hire and fire as they will, and that they are masters over the employees. This is not correct, and it is important that the relationship between employer and employee is a good one based upon trust and respect.

If your employer has acted unfairly, the first thing to do is to ask for a meeting to discuss the issues. Ideally, take a support person with you, and put down in writing the issues you have in a polite way, possibly as bullet points. Most employers will listen to your concerns and be keen to rectify them. They may also have concerns with you that link up to your concerns, and by discussing these issues informally, you can usually fix them early on.

If things do not improve, or get worse, you need to consider whether you have grounds to raise a personal grievance. The best way to do this is to call the Department of Labour, or speak with a qualified employment lawyer. If you do have grounds, then you will need to write to your employer (or get your lawyer to do so) stating your concerns and that you intend to raise a personal grievance. Also state (if it is true) that you are keen to sit down and still try to resolve the issues informally, and if agreed by your employer, do so with a support person.

If you still do not resolve the issue, and the dispute is linked to an issue such as discrimination, it may be that you are in a position where you need to choose which way you want to take your problem. In such a situation, if the problem is a discriminatory issue as defined in the Human Rights Act, and this is easily proved, then you may well be better off taking the matter to the Human Rights Review Tribunal rather than the Employment Relations Authority. To decide, you really do need to see a qualified lawyer, as once you have started in one forum, you cannot take the same case to the other.

If matters have not resolved, you can request informal mediation from the Department of Labour. For such mediations, it is recommended to take a qualified employment lawyer with you, but at the very least, take a support person with you. The issues will be discussed, and a resolution sought. However, both sides need to agree to go for mediation, and if your employer refuses, you have to go to the next step.

If the mediation does not work, you will need to file with the Employment Relations Authority. They will then arrange mediation with you and your employer, but this is formally arranged as part of the dispute process. If this does not succeed, you will then go for a legal hearing.

Remember the golden rules in regards to any grievance you may have…

Always be courteous and polite.
Do not show aggression.
Always take a support person, ideally a qualified employment lawyer.
Be open minded as to any possible resolution.
Do not just give in, but be firm in a polite way. (Assertive).
If in doubt, seek legal advice.

Your boss probably does not want to go down this track either, so if you can come to an agreement that is fair to both sides, that is the best way forward.

What we do

Buckingham law is offering the following services…

ACC – Help with lodging a claim. Handling reviews and further legal action. Assistance with medical error cases. Support and advice as to your rights, responsibilities and needs.

***In ACC cases it is ESSENTIAL that you seek legal advice IMMEDIATELY. There are some strict deadlines that have to be met, and if you do not act immediately, you can lose your right to follow up on a case.***

Family – Advice as to your options. Paternity tests. Access, custody and day to day care applications. Protection Orders and domestic violence issues. Divorces. Hague Convention international cases. Negotiation for workable and mutually beneficial agreements.

Employment – Wrongful dismissal. Redundancies. Exit packages, Personal grievances. Contract negotiation and proof reading. Employment Relations Authority representation and negotiation.

***In employment cases it is ESSENTIAL that you seek legal advice IMMEDIATELY. There are some strict deadlines that have to be met, and if you do not act immediately, you can lose your right to follow up on a case.***

Alternative Dispute Resolution – Mediations. Arbitrations. Negotiations. (Simon is an Associate member of the Arbitrators and Mediators Institute of New Zealand)

Other issues – Call to discuss initially.

Fees. The initial consultation is a flat fee of $50 for the first 30 minutes. After that, if we can help, fees can then be discussed and agreed upon. However, we believe in access to justice for all, and so terms can often be arranged on a case by case basis.

Legal Aid – At present we are not registered to take legal aid, though we are looking at registering in the future.