When the employment relationship falls over more often than not a personal grievance lands on the employer's doorstep. The majority of those are penned by either a lawyer or advocate. Needless to say personal grievances rarely just disappear on their own.
The Distinction Between Lawyers & Advocates
It is important to understand the distinction between ‘Lawyers’ and ‘Advocates’:
- Lawyers: Are required to hold a ‘practicing certificate’ with the NZ Law Society and are bound by a code of conduct and professional standards, i.e. they are regulated. Formal complaints can be made to NZ Law Society where there are serious concerns about a Lawyer’s conduct, but this is not something to do lightly.
- Advocates: Are not required to hold any formal licence, or qualification(s) – and they can conduct themselves however they see fit. Advocates can often take an extremely adversarial and/or abrasive approach to employment disputes and there is little to no recourse for making complaints about their behaviour, especially where their conduct is unprofessional, or inappropriate.
There are calls to regulate Employment Advocates due to concerns associated with the conduct of some individuals who operate in this space.
However, many employees cannot afford to access lawyers, so advocates fill a big gap in terms of providing individuals who could otherwise not afford representation with advice and support, and potentially access to justice.
Authorisation to Act for Employee
Lawyers and/or Advocates need an employee’s consent to take instructions, so you can check whether an employee’s representative has ‘instructions to act’ on an individual’s behalf – if there is any doubt about this.
Nominating an Employer Representative
Practically, dealing with advocates and/or lawyers is often best placed for an employer to nominate their own trained representative, but this isn’t required. Where an employer is not represented, and they are dealing with difficult representatives, they should ensure they are adequately equipped for the job. For example - appointing somebody on behalf of the employer who is reasonable, controlled, matter of fact, assertive, etc and more importantly, has the skills, experience, capability and confidence to deal with an employee representative.
Focusing the Discussions – The Key Issue(s)
Often in contentious situations conversations can go off-topic quickly. It may be necessary for the employer to bring the discussions back to the key issues, including the purpose of any formal meeting(s). It can also be helpful to have an ‘agenda’ to keep discussions focused on the important issues and stay on track, along with a separate note taker to take accurate minutes of any discussions.
Resolving Employment Disputes – Mediation & Litigation
You may not agree or accept the points and/or arguments raised by an employee’s representative and those issues may be 'embroidered' and/or expanded upon by the representative. You are entitled to respond or set out your position. Ultimately, if an employment relationship problem cannot be resolved, and if Personal Grievance claims are pursued, then it will be up to the Employment Relations Authority, or the Employment Court to determine the facts in the matter for the parties if you cannot settle it privately.
Often Mediation can be the best forum for resolving employment relationship problems since the parties can discuss the issues in a constructive semi-formal environment and in the presence of a trained Mediator. A Mediator can help guide the parties to a resolution in which both parties are the decision makers, can be ‘heard’ and stay in control of a dispute. Practically, achieving results at mediation is often contingent on the employer negotiating a financial settlement with the employee to resolve the matter – the goal to achieve settlement for the least amount practically possible in the circumstances. Mediation is optional as is your acceptance of the recommended outcome by the mediator.
This contrasts to a ‘court, or litigation process’ where a third party, i.e. an Employment Relations Authority Member will impose a decision for the parties. Where this occurs, then both parties lose control of the dispute and may not be happy the outcome that is imposed on them. There is a lot to be said for persuading and influencing pragmatic outcomes that can be secured at mediation vs going to a formal litigation process – where remedies for things like lost remuneration, injury to feelings compensation, legal costs, penalties, etc can be awarded against the employer (where there are grounds for successful claims). This is not to mention the time, energy & resource, etc defending legal proceedings requires.
Employers Assistance has experienced lawyers and employment relations consultants available at discounted hourly rates for our members who can represent employers with contentious employment
processes, or disputes. EAL can act as the employer’s chosen ‘mouthpiece’ to communicate important or difficult information to employees & their representatives, facilitate formal meetings and represent the employer’s interests at all stages. Phone 0800 15 8000 for
more information, including discounted charge out rates.
For more information on dispute resolution, including mediation in the employment context we recommend you watch our recorded webinar on the subject here :