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Committee calls for ban on advocates in Employment Court

29 Sep 2022

| Author: Jenni McManus

The ADLS Employment Law committee has written to Workplace Relations and Safety Minister Michael Wood, asking for employment law advocates who don’t work for unions to be barred from appearing in the Employment Court.

The committee says it’s concerned about the quality of service some advocates are providing to the public. And while it says they should be allowed to appear in the Employment Relations Authority, they should be subject to the same professional requirements and ethical standards as lawyers.

This would mean completing 10 hours a year of continuing professional development, making an annual declaration that they have not been convicted of any criminal charges, been declared bankrupt or been subjected to disciplinary proceedings, and complying with the Lawyers and Conveyancers Act (Conduct and Client Care Rules) 2008.

In addition, the committee says employment law advocates should be directed by MBIE to provide clear information on their websites and in their terms of engagement that they are employment advocates, not employment lawyers with a current practising certificate. Advocates should also have to state whether they are legally qualified and hold an LLB.

And the committee wants MBIE and or the Employment Relations Authority (ERA) to display clear information on their websites on how the public can provide feedback about employment advocates. It says members of the public often complain to the New Zealand Law Society about the activity of advocates without realising that NZLS doesn’t regulate employment advocates and cannot determine complaints about them.

“In light of the lack of regulation, we are of the view that the public should at least have a clear avenue to provide feedback to MBIE which may in turn inform any further developments in this area,” the committee said. Some employment advocates are legally qualified though others are not. And many do not make it clear to their clients that they are not practising lawyers.

According to Catherine Stewart, an Auckland barrister and convenor of the ADLS Employment Law Committee: “Members of the committee have experienced many examples of where a client has instructed them after having initially being represented by an advocate and the client genuinely thought that their former representative was a lawyer.”

Prior to the Employment Relations Act, employed union advocates and employer association advocates could appear in the Employment Court. The practice was then solidified under the Employment Relations Act. The committee says these advocates are usually not practising lawyers but were recognised as having sufficient skill and expertise to appear in the Employment Court “given their unique role”.

“However, a large new industry has inadvertently been established of advocates who work as sole practitioners. This has come about due to a wider (and in our view incorrect) interpretation of the relevant sections of the Employment Relations Act on union and employer association advocates.” The mischief the committee sees in the Employment Court is the advocates’ lack of the necessary skills and knowledge to adequately represent their clients. The court, it says, has different and more complex protocols than the Employment Relations Authority.

“Advocates who appear in court without proper knowledge of processes or systems (even just the preparation of pleadings and written evidence), particularly when it comes to matters involving interlocutory applications or complex issues of law, can create significant delays and escalation of costs for both parties (including the party appearing against them), which has flow-on effects for access to justice in the employment jurisdiction. Written briefs of evidence, affidavits and pleadings are often not of good quality when drafted by advocates,” the committee says.

Wood has acknowledged the committee’s letter but made no further comment. The committee also provided the minister with case studies where the ERA or Employment Court has expressed concern about the conduct of advocates.

In Ward v Concrete Structures (NZ) Ltd [2019] NZEmpC 111, Chief Employment Court Judge Christina Inglis made some general observations about the industry. “Advocates are entitled to appear on behalf of their clients in the Authority and the Court under the Employment Relations Act 2000. No regulatory framework currently exists to address any issues of competence. Nor does a complaints mechanism exist. The New Zealand Law Society, which oversees such matters in respect of lawyers, has no role to play in relation to employment advocates,” Chief Judge Inglis said.

“There is a limit to the extent to which the court can appropriately address professional standards issues which arise in respect of the conduct of some advocates and which impact on often vulnerable litigants, the opposing party and more generally in terms of the efficient and effective administration of justice… all of this is, of course, a matter for Parliament if it so chooses, not the court.”

In Kennedy v First Security Guard Services Ltd [2022] NZERA 26, the Employment Relations Authority found that the advocate had threatened the other party in a bid to get them to settle. “There are several components to the orders sought. The application is based on the conduct of Allan Halse, Ms Kennedy’s representative. First Security asserts that Mr Halse has made several threats against it if that it does not settle with Ms Kennedy, then he will publish negative comments about the company and/or its management in the media and/or on his social media platforms. These are contained in emails sent by Mr Halse,” the ERA said.

It went on to make interim orders against the employment advocate to restrain him from further highly inappropriate conduct. He was required to cease threatening or making public comment about First Security Guard Services, take down any current posting to websites or social media and not to contact the company about his client. All communications were to be sent to the company’s lawyers.

In Davidson v Great Barrier Airlines Ltd [2016] NZERA Auckland 403, the employment advocate was found liable by the ERA for a penalty because of his poor conduct. “Having found the delay and obstruction was without sufficient cause, Mr Bennett was liable to a penalty under s 134A of the Act,” the ERA said. “The failures that caused the delay and obstruction occurred either side of 1 April 2016….

“As already noted the failures to provide Ms Davidson with information about progress on her case, culminating in postponement of the first scheduled investigation meeting, occurred over a number of months. They were not ‘intentional’ but amounted to significant negligence by someone trading as an “employment law specialist”. Harm caused included the further anxiety and delay for Ms Davidson, left in the dark for five months over progress in her application, and the additional cost and worry for GBAL while participating in an Authority investigation that was then longer than expected. While the relationship between Ms Davidson and Mr Bennett was commercial, as client and advocate, she relied on his expertise and advice while she sought to address an employment relationship problem, including when she resigned and raised a personal grievance for constructive dismissal. It was Ms Ryder who sent Ms Davidson’s notice of resignation to GBAL.

“While Mr Bennett accepted “responsibility” for the failures that hindered the Authority’s investigation, it could not be said he demonstrated any real remorse. Rather he thought it “unjust” that his responsibility should result in any real consequence. There were strong public interest factors favouring a penalty that deterred representatives from failing to make sensible, prompt alternative arrangements if they could not properly attend to the needs of clients who relied on them.” ■

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