The employment jurisdiction is somewhat unique in that the institutions have historically allowed a special place for lay-advocate representatives. They carry out the same work as lawyers including representing parties in disputes, negotiations and mediations, and at the Employment Relations Authority (Authority), Employment Court and, with special leave, beyond. However, there is no regulatory framework to address issues of concern regarding an advocate’s conduct, competence or complaints. Lawyers are bound by the Lawyers and Conveyancers Act (Lawyers Conduct and Client Care) Rules 2008 and are subject to complaints and disciplinary mechanisms. When an advocate fails to conduct themselves professionally or competently, it is the client or applicant who is at risk of a poor outcome or even costs and penalties if there is non-compliance with orders of the Authority or Court. Yet employment advocates are not answerable to any professional body.

Most professional bodies are regulated – real estate agents, accountants, doctors, engineers, electricians, teachers, valuers and immigration practitioners. But not employment advocates?

In 2019 the Authority issued a Practice Note to address some of the concerns around representative misbehaviour and professional standards. The Practice Note set out the expectations of how representatives shall conduct themselves in the Authority. This includes a need to be polite and constructive in their dealings with Authority Officers, Members and other representatives. In 2022 the Authority issued a consolidated Practice Direction which sets out the Authority’s expectation of “parties” who engaged in the process. In 2023 the Authority referred to regulation of advocates in its annual report where the Chief of the Authority, Dr Andrew Dallas, states that the Authority remains committed to advancing the case for regulation of advocates.   

In a recent ruling of the Employment Court, Joyce v Ultimate Siteworks Ltd [2024] NZEmpC 204, Judge Holden referred to the advocate for the applicant’s inappropriate behaviour. This behaviour included unprofessional and abusive communications to the respondent’s representative such as emails, late night phone calls, and one-star Google reviews. The Court invited the advocate to apologise to opposing counsel which he did. However, the apology was short-lived, as he stated he was entitled to his opinions and freedom of speech. Her Honour noted that, although the advocate’s conduct occurred outside of the Court process, there was an expectation that representatives deal with each other with respect and courtesy. In other words – act professionally. The difficulty is when an advocate fails to act with respect and courtesy, or professionally, there are no consequences. As the Judge said, there are no rules that address this issue and there is no applicable professional body to which the Court can refer an advocate’s conduct. Her Honour observed that if the advocate had been a member of such a body, this is a step she would have considered taking.  

In another case, H v RPW [2020] NZEmpC 141, Judge Perkins referred to an advocate’s behaviour as intimidating and inflammatory. The Judge observed that an advocate held a privileged position before the Court under s 236 of the Act and suggested that the advocate comply with the same requirements of behaviour as are imposed on legal counsel.

The Court’s observations are a call to action. It is time for employment advocates to be regulated for the protection of both their clients, other counsel, and the Authority and courts. The latest decision of the Employment Court is another example of what many employment practitioners have experienced in the profession, where they are subject to abuse and there is little, if any, recourse.

The Employment Law Institute of New Zealand (ELINZ) requires its members to uphold ethical standards of behaviour and conduct, and all members are bound by their continued membership to the ELINZ Code of Conduct and Complaints Policy. Regrettably, ELINZ is unable to address complaints received about non-ELINZ members from their past clients or other practitioners. As an organisation, ELINZ aims to lead the future of employment law in New Zealand and in collaboration with the Law Society and the New Zealand Bar Association, ELINZ is keenly focused on the future regulation of employment law practitioners.