Employment Relations Authority calls out rogue employment advocates for giving people poor advice

By Amy Williams for RNZ

Rogue employment advocates are being called out by the Employment Relations Authority for giving people poor advice, sometimes leaving them with thousands of dollars in costs.

The sector is being described as the wild west with no requirement for training or any process for the public to file a complaint, and there are now urgent calls for tighter controls.

When things go pear-shaped at work, many people turn to employment advocates who perform a similar role to lawyers during disputes.

A woman who wishes to remain anonymous, whom RNZ will call Sarah, believed her case was made worse by bad advice from an advocate which ultimately cost her the job.

"For me it was really hard because I get so anxious anyway, so for me it caused a lot more anxiety especially when I was like, do you know how to do your job?"

Sarah has a disability and said her manager out of the blue started to take away tasks she had been performing for years, which she said was discriminatory.

"It just means basically that I often get put in a box and when I get put in a box I'm not a happy person, and that's why I did what I did."

Sarah said her advocate was out of their depth and took months to get the ball rolling on a personal grievance, by which time it was too late to lodge and there was nowhere she could go to lay a complaint.

The Employment Relations Authority hears workplace disputes, with employment advocates often representing employees.

Another woman who wishes to remain anonymous lost a constructive dismissal case where she believed she had been forced to resign.

She felt bullied by her advocate and lost amongst the legal language, as well as worrying about the fees.

"I was upset and frustrated as with a little time I could see that I had put all my faith in this person and she had appeared to misinform me, attempted to showcase herself and fight to the end - it had not been about my best interests but by her desire to win at any cost - my costs - financially and mentally."

Here's what the Employment Relations Authority had to say about her case in 2017:

"This litigation was ill-conceived and poorly executed, at least in respect to the way [the employment advocate] handled it. That put [the employer] to unnecessary costs that should have been avoided."

The woman was ordered to pay $10,000 in costs to the employer and then went through a lengthy process to get back $6000 in fees from the advocate.

She said it nearly cost her her home.

"Ensuring that employment advocates have to be regulated is essential - to all parties involved. Unprofessional representation has far-reaching effects and they are long-lasting," she said.

Employment Law Institute president Kelly Coley is an employment advocate and said she hears many other similar stories where rogue advocates create havoc.

She picks up cases of people who have been poorly represented and sees the resulting reputational, financial and psychological harm.

"In using a lay advocate or someone who's not bound by any professional obligation or code of conduct, it can have quite dire consequences for them and that ranges from actually losing their job up to and including being incredibly emotionally distressed," Coley said.

"Sometimes I act as an ambulance at the bottom of the cliff where not a lot can be done to repair the situation for that person."

The institute has a code of conduct that applies to members but becoming a member is voluntary.

Coley said regulating the sector to require practitioners to be licensed would be a good step.

"First and foremost we need to have all advocates regulated. We need to know that they are bound by professional rules and have ethical obligations," she said.

"It could be as easy as doing some tweaks in the current legislation or it could go as far as doing what we've done with the immigration or financial advisors."

The New Zealand Law Society supports calls to regulate the sector.

"Employment advocates fall outside the regulatory function of the New Zealand Law Society, but the lack of any regulation of employment advocates has been a concern of ours for some time," it said in a statement.

An independent review of the statutory framework for legal services in the country will look at whether more regulation and oversight is needed for laypeople who provide legal advice and services.

"The New Zealand Law Society considers that safeguards should also be in place for those who seek advice and representation from employment advocates."

As it stands, Coley said just about anyone can call themselves an employment advocate because there are no requirements for qualifications or training.

"Someone's grandma should be able to support them but there's quite a difference in being a representative and a support person.

"Grandma should be able to sit with you in a meeting and rub your back. I don't necessarily believe that grandma, unless she's got good skills and knowledge and expertise in the area, should be your representative."

Sarah did eventually find an experienced advocate to take on her case.

"If it's a minor little issue like mine started off to be, no problem, go down the advocate pathway, but if it starts to escalate you've got to get someone experienced involved."

The government intends to look at the role of employment advocates in the review of the dispute resolution system, which is on the to-do list for the Ministry of Business, Innovation and Employment.

Its policy director Tracy Mears said "the review is on MBIE's work programme and MBIE will begin when resources are freed up from current projects."