The Court of Appeal is currently considering cases in which the Employment Relations Authority and Employment Court have acted beyond their jurisdiction. That means judges acting illegally. Other cases are following behind.
A beacon of hope that the judges, at least, were curtailing the illegal activities of Authority Members, appeared to be the case of Samuels v ERA, Lang and Gourmet Foods, decided last November,. This was not an employment case, but one concerning a power that does exist in the Employment Relations Act 2000 for Members to award costs as they see fit.
Member Vicki Campbell awarded Roland Samuels, an employment advocate from Auckland who is also a Red Cross volunteer, less by way of costs than she would have awarded a lawyer, apparently just because he was an advocate.
Member Campbell had required to see his private contract with his client, failing to advise the client that it was privileged, before proceeding to make her decision on 2 February 2018. She did not say whether she thought advocates were worth also less if they were former lawyers who had simply not renewed their practising certificates because, in the employment tribunals, they do not need them, although that is not an uncommon situation.
Mr Samuels pointed out that the reasons Member Campbell gave were not accurate. She claimed he was not "regulated" and that meant she could do as she wished. Mr Samuels is regulated by a range of legal provisions such as the Privacy Act 1993, and owes his clients a duty of care under the law.
Counsel assisting the Court, Jenny Catran of Crown Law, rather unexpectedly suggested that lawyers had insurance expenses which advocates did not have. Lawyers in New Zealand do not have to be insured. Advocates may similarly choose to be insured. However, Chief Judge Inglis did say that Ms Catran was a contradictor.
Chief Judge Christina Inglis held that Member Campbell, a lawyer, exceeded her powers by ordering that Mr Samuels should receive less payment for his work because he was an advocate and not a lawyer.
There was a sting in the tail for Mr Samuels in Judge Inglis' next decision though.
Member Campbell has quasi-judicial immunities, by statute. So, according to Chief Judge Inglis decision on 11 February 2021, costs could not be awarded against her for her decision as a Member.
She did not even have to pay the costs of resisting Mr Samuels' application for costs. The good old taxpayer stumped up a lawyer from Judge Inglis' old haunt at Crown Law, the same department as Ms Catran for the Authority, to represent Member Campbell !
So the message to the public seems clear. Chief Judge Inglis, in a decision last June in the Dollar King case, told the Authority not to keep making decisions against people that it cannot make. But, if they do it anyway, the victim has either to put up with it (and then the Authority will claim it has gained the power by "estoppel" anyway) or to waste their own money on a rehearing in the Employment Court ... and the Member will get away laughing.
Perhaps a sting in Member Campbell's personal tail would be appropriate.
Member Campbell's employer, MBIE, could pay out Mr Samuels without requiring proceedings for abuse of the process for which it would be liable.
Or the Disputes Tribunal could order Vicki Campbell to pay for her abuse of her position as Member.
Chief Member Dallas should certainly recommend that she is unsuitable for reappointment by MBIE when her term is up.
Or he could bring in Member Anna "Fun Bum" Fitzgibbon to advise on the most suitable slap - maybe not over the wrists ...