Some unethical employment advocates are causing psychological and reputational damage, according to those working in the area
The Government plans to review the lack of regulatory controls of poor or fly-by-night employment advocates, amid calls for a crackdown.
Similar to a lawyer, an advocate will represent someone – usually an employee – during employment disputes. But unlike lawyers, who must hold a current practising certificate, advocates aren’t required to meet any training or qualification standards. Nor is there any professional body to complain to and seek redress for poor conduct.
Some advocates do have some legal training, including a law degree, but it’s not a prerequisite and essentially anyone can call themselves an employment advocate.
Rather than increasing access to justice, there are fears that this free for all means vulnerable clients get the short end of the stick.
Employment lawyer Alastair Hall says he's seen this first hand. He describes one case in which an aggrieved worker was ordered to pay costs to her employer, after her employment advocate-led claim for a permanent contract and pay rise was rejected.
Nicola Francis' allegations of constructive dismissal and unjustified disadvantage by her employer, Ruawai Rest Home, were fundamentally flawed and lacked legal foundation, right from the beginning, according to 2017 findings.
The Employment Relations Authority ended up rejecting Francis' claim and the case could have been done and dusted. But Francis rejected a modest costs offer of $1500 and pushed on with the arguments over costs.
“If an advocate puts their own interests first, or conducts the case badly or incurred costs unnecessarily, who does the employee complain to?” – Alastair Hall, employment lawyer
The authority was told Francis had no understanding or control over what was being done on her behalf by her advocate, Jenny Murphy. Francis wrote in a costs letter that she was "bullied" by Murphy into pursuing claims she didn’t agree with, and that the continuation of the grievance claim related to her ability to pay Murphy’s fee.
Murphy rejected the criticisms of the quality of her representation, calling them derogatory and unprofessional and saying they did not warrant response – but the presiding Employment Relations Authority member Mike Loftus disagreed.
As a result of the protracted tussle, the Ruawai Rest Home eventually sought nearly $30,000 for costs. Francis, who was of “limited means”, was ordered to cough up $10,000 for legal fees.
This was more than six times the fees she would’ve had to pay if the first cost offer was accepted.
The Authority noted that if the worker had competent representation, then both parties might’ve avoided unnecessary costs.
It’s situations like this that Hall is concerned about, where clients of employment advocates don’t have the same opportunity for redress as people who seek the help of a lawyer.
“If an advocate puts their own interests first, or conducts the case badly or incurred costs unnecessarily, who does the employee complain to?”
Hall is not the only one concerned about the lack of regulation. Graeme Colgan has worked in employment law for more than 40 years, topped off by a 12-year stint as chief judge of the Employment Court.
“In my experience, there are some good and ethical advocates, but there are lots who fall below that standard. I’ve seen a lot of very unfortunate results for the clients who have missed out on a just outcome for them,” he says.
“Mostly those people are dismissed employees, so they’re behind the eight ball to start with and the last thing they need is an incompetent advocate.”
There was a fundamental shift in the advocate space in 1991, when the Employment Contract Act came into force, according to Colgan.
Prior to the legislation change, there were unregulated advocates working in the field, but these were employed by a union or employer’s association, so Colgan says there was a degree of control and accountability.
But the change deregulated the employment field, opening up the space to independent advocates who were not attached to unions or other organisations.
Kelly Coley is an employment advocate who is not a lawyer, She also sits as president of the Employment Law Institute of New Zealand. She says it's hard to know exactly how many of her peers there are operating in the country but she puts her “guesstimate” at about 300.
She believes there’s a place for her kind in the legal sphere, so long as they’re acting ethically and competently.
“There's definitely a need for advocates and they do play a vital role in access to justice, as long as they're not ripping off their clients or being incompetent or unprofessional or causing more damage to the employment relationship than what was already there,” she says.
The Employment Law Institute of New Zealand has raised the issue of unregulated advocates with the Government on multiple occasions. Representatives met with then-Minister for Justice Andrew Little in August 2020 and then again with Minister of Workplace Relations Michael Wood in May 2021.
But Coley thinks more urgent action should be taken. She believes people have suffered “psychological and reputational damage” as a result of poor legal representation, or they might be led to believe they have a strong case when really there’s not a foot to stand on.
“I pick up files myself where someone's been really poorly represented,” Coley says.
“It's very hard to fix some of the damage that some unregulated advocates are doing, particularly where there's an ongoing employment relationship.”
Licence to advocate
The Ministry of Business, Innovation, and Employment says it gets complaints about advocate conduct from “time to time”, perhaps explaining why the Government isn't rushing to clamp down on the sector.
Alastair Hall thinks there should be a clear cut path for dealing with grievances.
He wants to see a professional body established, similar to the Law Society, to help maintain, encourage, and enforce conduct standards and manage complaints.
There are also suggestions that employment advocates must be licensed, much like what’s required of immigration advisors. This includes completing an approved qualification or entry course and successfully applying to the Immigration Advisers Authority for a licence.
Newsroom asked Wood whether the Government is considering licensing or other regulation of employment advocates.
According to his press secretary Travis Mills, the "role of advocates is something that the Government intends to consider” as part of a review into the employment dispute resolution system, but there's no sign this could include regulation or licensing.
