ERA Snubbed at Employment Law Conference - Why? by Kim Leighton

An important bi-annual Employment Law Conference will be happening at Te Papa on October 22 and 23. All of the Employment Court judges, several mediators and workplace investigators and of course employment lawyers will have speaking roles.

Due to Covid-19 the conference was delayed, as was the NZ general election; in fact the conference is less than a week after the election.

To those attending, it may be of great interest who will end up being appointed the next Minister in charge of MBIE for the next few years. Several weeks ago the Justice Minister Andrew Little (a lawyer in a previous life) took over the MBIE portfolio which Iain Lees-Galloway had held since 2017. We assume this is a temporary arrangement but a lot can happen during a three month caretaker period.

Here are some examples of developments that are of interest to us:

- The Employment Law conference has been organised with the ERA appearing to have been sidelined, and the organisers have not yet responded to our enquiry about that.

- Chief Judge Inglis has overturned an ERA-imposed penalty that wasn’t sought by the applicant as ultra vires (beyond its power), and in doing so has effectively admonished the ERA Member.

- Two penalties totalling in excess of $80,000 imposed by the ERA on an employment advocate - one with a former contractor becoming collateral damage and the other including a $6,000 “kickback” to the employer’s lawyer, have been challenged in the Employment Court on the basis that the ERA had no jurisdiction to award those penalties; as yet there is no decision.

- An unrelated action against the same advocate, and the advocate’s client, has been brought by Bay of Plenty District Health Board and this one seeks a finding of Contempt of Authority (see para 3) which has never happened in the 20 year history of the Employment Relations Act 2000. There was a preliminary hearing on jurisdiction in the Employment Court in late June with that decision also pending.

- The new Contempt of Court Act 2019 came into force on 26 August which gives the ERA greater powers to punish individuals for contempt. It’s a watered-down version of Chris Finlayson’s private member’s bill and not of great interest in itself, apart from a suspected ulterior motive of a lawlord (Mr X) who advised the then rookie Justice Minister on it in early 2018. That advice came just weeks after Mr X received what we believe was a secret commission awarded to him by the ERA.

- In 2019 an ERA Member issued a compliance order against the former employee of a beekeeping company and in doing so, interfered with evidence in High Court proceedings in relation to a commercial dispute. Any lawyer who becomes aware of misconduct such as this has an obligation to make a report to the Law Society under Rule 2.8 and this has in fact occurred.

- The Law Society has dismissed previous complaints about ERA members on the grounds that they were not providing regulated services at the time, even if they had current practising certificates.

- The Law Society has also dismissed previous complaints about lawyers on the grounds that it is for the judge to discipline them if there are court proceedings. This is despite the Rules saying it is misconduct to do certain things in court. Instead of the lawyers being disciplined, the judges tend to trust the lawyers and are prepared to give them whatever they ask for. Precedential decisions are often sought after because where a lawyer can show that there has been a new type of order once, that’s the basis for asking for the same type of order again. Often the aim is to get an order in the ERA that is effectively challenge-proof (including burning out a party financially and emotionally) even if it’s not legally valid.

- The Chief of the ERA, and more so the previous Chief, would not deal with complaints about wayward determinations by ERA Members. There is no Code of Conduct for ERA Members and even though they are not judges they have “judicial immunity” and this is an accountability gap that might give rise to the appearance of cronyism and trading in influence. By contrast Employment Court judges, or any judge for that matter, can be complained about to the Judicial Conduct Commissioner.

The next few months are going to be very interesting especially given the call for public submissions on workplace bullying and harassment. The prevalance of these problems are a symptom of the dysfunctionality of a system that is supposed to fix them.

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