ADLS Committee calls for ban on advocates in Employment Court; see response – by Lawrence Anderson

(3 Oct. letter to Workplace Relations Minister Michael Wood in response to lobbying by the Auckland District Law Society, Employment Law Committee, publicised 29 Sep.)

Dear Hon. Wood,

I am an Employment Advocate. I hold a Graduate Diploma in Business (Dispute

Resolution) and am an Associate member of the Arbitrators’ and Mediators’ Institute

of New Zealand (AMINZ); and I am currently studying toward a Bachelor of Laws.

Myself and my constituents are concerned with the proposal put forward from the

ADLS Employment Law Committee (“the Committee”) that has been published.

In considering our views we observe the object of the Employment Relations Act

2000 that this framework addresses the inherent imbalance of power between

employer and employee; and the protection of the integrity of individual choice.

Employment Advocates are integral to helping resolve employment relationship

problems at the lowest possible level. This includes where Advocates, like myself,

often offer clients a “no win, no fee” arrangement for cases that have merit.

My personal experience in representing employees include having been successful

in the Employment Court for clients where the employer has challenged the

Employment Relations Authority’s determination.

When there is a challenge filed in the Employment Court, after service being

effected, the respondent has only 30 days to file a Statement of Defence. If the

Employee wishes to challenge a loss in the Authority, there is only 28 days to file a

challenge.

The cases that we take to the Authority for our clients result in a client-practitioner

relationship often for the period of 1-2 years or longer. If there is a mandatory change

in representation where an Employment Court challenge occurs, there is a limited

time (as described above) to file a defence for the employee; the employee may be

impecunious and unable to pay legal fees (this may be due to the employer’s

actions); and a lawyer taking over the case will not have had the benefit and insight

into the facts and merits of the client’s case. A lawyer would have to start from the

beginning to get up to speed with the case at a considerable expense to the client.

Notably, as far as I am aware, where there is a challenge to a Judgment of the

Employment Court, and the Court of Appeal grants leave to hear the challenge (well,

before that step), Advocates can seek leave to represent their client on the grounds

of their intricate knowledge that they have acquired during the course of

representation of the matter. The client would be prejudiced without the Advocate.

Therefore, we are concerned that if the Committee’s proposal is adopted that

employers will have a perverse incentive to challenge Authority decisions where an

employee has had success in the Authority, because under this proposal an

employee cannot utilise their Advocate for representation in the Court.

Giving up and walking away may become the only option for the employee in light of

balancing risk and lawyers’ fees; considering the pressure on the employee in this 30

day timeframe. The “no win, no fee” contract with the Advocate will entitle the

Advocate to fees from the successful Authority determination and the client may still

be charged by the Advocate even if there was a win in the Authority. That is currently

not my practice to do that as I consider it to be unethical given that currently I am

able to defend challenges in the Court.*

Would such a regime of banning Advocates from the Employment Court be contrary

to the Act’s object to address the imbalance of power between employer and

employee?

Would such a regime open the floodgates to employers challenging Authority

determinations where the employee has limited options in seeking affordable

representation? Or within a reasonable time?

Would such a regime restrict Advocates from performing other actions, for example,

seeking a declaration of Employee Status under s 6 of the Act, where the Court may

be able to hear such a claim sooner than the Authority?

If on day one, we told an employee client that any Personal Grievance raised, or

Authority proceeding filed, could lead to a challenge that we cannot defend for them,

most people are not going to want to go through this dispute resolution process

knowing that in the end we cannot help them if their former employer challenges an

Authority determination. The effect of this is the employee being denied access to

justice by not having the funds to pay for a lawyer.

We appreciate there is a push to regulate Advocates. We feel that there are much

better ways of doing it. If it was done the way the Committee has described, we are

of the view that it would be a disaster for the reasons I have set out above.

Yours faithfully,

Lawrence Anderson AAMINZ

* It is the writer's practice to continue the "no win no fee" arrangement to see the case to the end if there is a challenge to the Employment Court, eg: https://www.employmentcourt.govt.nz/assets/Documents/Decisions/2020-NZEmpC-131- Surplus-Brokers-Ltd-v-Armstrong.pdf https://www.employmentcourt.govt.nz/assets/Documents/Decisions/2022-NZEmpC-114-STL-Linehaul-v-Waters.pdf