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Our Newsletter2019-04-01T09:24:34+12:00

Latest News

March 2019

In this issue:

  • From the President’s desk
  • Special report: Bullying in the ERA
  • ELINZ achievements and news
  • First and Foremost
  • ELINZ events and projects
  • Notices
  • The ELINZ Team
  • Contact us

From the President’s desk

Welcome to our new-look newsletter!

I am pleased to report that ELINZ continues to strengthen after the trials and tribulations of 2018. 
 
The core values of the Institute remain in focus.  We are dedicated to ensuring the professional standards of representation in employment law in New Zealand.  This can only be achieved if we grow our membership and encourage practitioners to avail themselves of the benefits of membership.  Our ability to provide mentoring at various levels is improving and is bolstered by the introduction of the ‘Friends of ELINZ’ programme.
 
The credibility which comes from membership is a benefit which, while intangible, pays huge dividends if the traffic through our website is anything to go on.    Any referrals made by ELINZ will only ever be to registered members.
 
We are pleased to report that we have had minimal complaints in the past six months.  Those complaints which we have received have been dealt with quickly and efficiently and, in the majority of cases, to the satisfaction of both parties.
 
Our efforts to see the industry regulated continue.  While this is essentially our secondary goal behind the promotion of professional standards, we consider this to be critical if the industry is to regain a respectable profile in the eyes of the general public.
 
Our new website – www.elinz.org.nz – is now all but complete.  The biggest problem we now face is the welcome dilemma of trying to keep up with the flow of new applications and enquiries about membership which has taken a leap in recent weeks.
 
The Executive continues to promote ELINZ at every opportunity. We encourage those who are already members and those who see the obvious advantages of membership for their colleagues to help us promote the Institute to those who can most benefit from it.
 
Strength in numbers is key to gaining the ear of the incumbent government.  Through our efforts we will continue to address the question of regulation and other issues which affect the members of ELINZ. 

Mark Nutsford
President

Special report: Bullying in the ERA
by Mark Nutsford

The opinions expressed in this article are those of the President, endorsed by the Executive of ELINZ and several members who have offered support.  The subject matter has not been canvassed with the membership as a whole.

I was recently copied into an email which invited me to speak about the Employment Law Institute of New Zealand Inc. (ELINZ) to a group of disgruntled advocates who were raising complaints about the Employment Relations Authority (ERA).

I struggled to gain any elaboration on just what the complaints were despite requests for more information prior to the meeting.  I was finally sent three determinations which seemed to be the catalyst for the outcry.

Each case involved advocates (rather than lawyers) and the issue seemed to be largely about costs.

At the meeting it soon emerged that the group who had called the meeting claimed that there was a culture of bullying in the ERA, that the ERA is “against” advocates, that advocates were discriminated against (particularly in relation to costs) and that the ERA and its Chief were “corrupt”.

The meeting was poorly organised, had no agenda or chair and lurched from topic to topic, punctuated with personal attacks on myself and ELINZ in general.

In the meantime, I had read through the determinations I had been sent as references.  In each case it was very clear that the advocates in question (none of whom are members of ELINZ), had performed abysmally and had incurred criticism from the Members on a number of fronts.  One in particular, according to the determination, had prepared the Statement of Problem and the ensuing witness statements so poorly, that what should have been a half-day investigation meeting took a full day because evidence had to be exposed through cross-examination when it should have been made clear in the aforementioned documents.  Each Member in the three cases was critical of the standard of work and assessed costs accordingly.

It is well accepted that costs follow the event and that costs will generally be assessed (other than by the tariff basis) at somewhere between one third and as high two thirds of the actual costs.  In each of the three cases this principle was applied and costs were awarded accordingly.  I could detect no suggestion of bullying.  In each case the Member had acted within the bounds of their authority.

In one of those cases (despite the cost award being accurate and unchallenged) the Member refers to the advocate as unregistered and unqualified.  It seems that at least one aspect of that statement was incorrect; the advocate in question claiming to hold a qualification which refutes the claim.  The advocate has advanced a case in the Employment Court (Samuels v Employment Relations Authority [2018] NZEmpC 138) which, if successful, is likely to result in a damage claim against the ERA.  I will not comment on that case further.

Since attending the meeting on 26 January 2019, I have spoken with our Executive and a number of ELINZ members, several of whom felt compelled to ring me.  We are all of the opinion that these particular claims of bullying are unfounded.  However, we are of the opinion that the concept requires further review.

Every advocate and a number of lawyers I have spoken to all share at least one story of having been censured by a Member of the Authority when they have erred or ‘stepped over the line’.  In every case the person in question has accepted that this was criticism of their performance, accepted that criticism and moved on.

We consider that Members have to be firm with all participants at an investigation meeting (IM) to maintain order and to ensure that the IM proceeds efficiently and in a timely fashion.  I for one, have never felt discriminated against because I am an advocate.

I am sure that the reader will appreciate that the group I met with were not members of ELINZ, although I hasten to add that some seven of the ten (or so) attendees have now applied for membership, several of which have already been approved.

In all my time as President of this organisation, I am only aware of one formal complaint of bullying by a Member of the ERA.  This was some years ago, and when ELINZ performed an analysis of the complaint, it was clear that the advocate in question simply did not agree with the outcome of the determination.  Obviously, in that instance, the affected party only has the option of a challenge in the Employment Court.

We consider that the poor practices demonstrated by a limited number of lay practitioners in the industry are bringing the industry and the employment law fraternity into disrepute.  We also consider that, until these practitioners join an organisation like ELINZ, they will never gain the knowledge they require in order to ‘lift their game’.  Professional isolation means that the only contact these people have is with other people of the same ilk.

While a detailed list of ELINZ objectives is contained in the constitution and on our website, I remind members and non-members alike of the ELINZ mission statement, which is “to promote and enhance the professional standards of employment law advocacy in New Zealand“.

We will continue to provide mentoring (where appropriate) to our members and to encourage them to improve the services they provide to their clients.  Much of the direction for this comes from the complaints process we provide.  While our Code of Conduct provides for the issuing of a range of censures and penalties, such steps are an absolute last measure against offending members and have never been used in the history of ELINZ.  Rather, we have had outstanding success in the outcomes of genuine complaints we have received over the years.  The majority of complaints prove to be unfounded and relate to simple communication.  The cases which have had foundation have been resolved in all but one instance and there has never been a repetition of the offences we have resolved.

Despite our internal processes we still consider that regulation of the industry is the only way to achieve the goals of ELINZ in their entirety.  We have worked hard on this for many years with little success against the ebb and flow of political change.  We will continue to strive in this regard.

The strength of the ELINZ membership is critical to achieve regulation.  We encourage all employment law practitioners (lawyers and advocates alike) to join ELINZ regardless of what other organisations they already belong to.  It is only the unity of us all that will eliminate the poor practices which we have all witnessed to some degree or another.  Visit the ELINZ website – www.elinz.org.nz – for more information.

ELINZ achievements and news

We have to admit, 2018 was a bit of a bumpy year for ELINZ.

We had teething problems with our new website, then we had problems with our old website, then our new-new website was hacked just before Christmas!

In addition, we had a number of other little issues and niggles that just goes with the territory of running an organisation such as ELINZ.

But throughout the year, the ELINZ team was beavering away on a number of projects, including new website, new image / branding, networking and member benefits.

Read more below!

New website

Most of you will have noticed that we were website-less for a number of months last year.

At the beginning of 2018, we engaged a professional website developer to design our new website.  Unfortunately we encountered a number of problems with our soon-to-be new website, and with our old website.

As a result of not being in a position to advertise our members’ details, the Executive Committee made the decision to waive membership fees for 2018.

Now that we are back on track with a new and improved website (with new logo and image), we will be sending out invoices for your 2019 membership fees (some of you may have already received yours).

If you would like to join up or renew your membership, or if you know someone who would like to join, our application for membership form can be found on our website, or alternatively, you can email us at membership@elinz.org.nz and we will send you a form.

New friends

As part of our desire to become better known in the employment law / dispute resolution jurisdiction, and to make connections with other practitioners and sectors of the jurisdiction that could be mutually beneficial, the ELINZ Team have been networking their behinds off!Earlier in 2018 we developed a relationship with AMINZ and ELINZ members who are interested in furthering their dispute resolution skills can now access AMINZ courses at AMINZ member prices.

We are also very fortunate to have a number of new friends in the form of senior practitioners who have very generously agreed to share their skill, experience and expertise to benefit our organisation and members.

If you are interested in becoming a ‘Friend of ELINZ’, please email the Secretary on secretary@elinz.org.nz

 

New support

Mental health is one aspect of our health and well-being that appears to be neglected in far too many aspects of life.Working in the employment law jurisdiction is no walk in the park.  We are constantly dealing with problems and disputes.  While mediation, negotiation and dispute resolution are to be emphasised and prioritised, litigation is sometimes an inevitability.

This can be a difficult, stressful and sometimes rather thankless job and as our President has already indicated, professional isolation can be an unavoidable problem.

So we are very pleased to be able to announce that we now have an expert on board to provide support in this area to our members.

Claire Thompson is a qualified and experienced counsellor and mediator with a particular interest in workplace dynamics and employment law.  Claire is able to provide coaching, counselling and support to our members in person, via Skype or via phone.

To find out more about Claire, go to her website – https://www.clairethompson.co.nz/ – or contact her direct on:

 

New members

Finally, a very warm welcome to our newest members:

First and Foremost

In this issue of Employment Lore, we introduce our regular column, ‘First and Foremost’, written by our very own Kelly Coley.  Kelly describes herself as someone who ‘eats, sleeps and breathes good faith’.  Read on … 

Somehow I’ve managed to get myself locked into a regular feature in our newsletter about good faith.  I brought this upon myself by making a flippant comment to my learned colleague about good faith and how I “live and breathe good faith, and even have a daughter called Faith”.  Famous last words.  Now I’m in the hot seat bringing you ‘good faith by Kelly Coley’ on a regular basis.

Since starting my career, I can say I’ve learnt a great deal about good faith, and it has become a way of being for me rather than a token slogan slapped in a letter which has disadvantageous consequences for the reader.  I’m sure you have all seen at least one of the letters I refer to:

“Your employment is terminated with immediate effect. However, in good faith, we have decided we will pay you any outstanding wages and holiday pay …”

So this time I’m going to make it easy for myself and throw out a challenge to our readers (i.e. members and non-members alike).  Send in an anonymised outline of the most memorable correspondence you have received making an “in good faith” statement where clearly it was used as a ‘token slogan’ to vice-president@elinz.org.nzI will choose the best (or perhaps worst) entry and the winner will receive a $50 voucher of their choice.

Kelly Coley
Vice President

ELINZ events and projects

Over the past year or so, some of you may have noticed a few changes here at ELINZ.

We have a number of plans (see below) to make being a member of ELINZ even more sensible, but we’re a pretty small team and we need help.

So if you think you’re a bit of a hot shot with admin, writing articles or case summaries for the newsletter and/or website, being interviewed on video, being a mentor or anything else you think we ought to be looking at doing, please put your hand up and we will start taking down names and making plans.

Admin superstars

We’re a pretty small team, and we all have our day jobs to attend to as well as ELINZ stuff.  So if you just happen to be an admin whiz, please get in touch.

We won’t need you to commit to hours or days per week, but it would be great to have a number of people to call on when we need occasional admin jobs done.

Calling all writers!

Yes, that’s right, we need people who are interested in writing brief case summaries for the new website or less-brief articles for the newsletter.We are looking for practitioners (members and non-members alike) who are not only passionate about, or knowledgeable in, a particular area (e.g. health and safety), but are also keen to share their knowledge in exchange for a bit of fame.

We’d particularly like to see articles on some of the below, but if you think you’ve got some better ideas, feel free to ‘wow’ us:

  • migrant workers and migrant exploitation;
  • health and safety;
  • drug testing;
  • employee or contractor?;
  • bullying and harassment;
  • section 134A(1) of the ERA 2000
Sorry, but any submitted summaries or articles beginning with “once upon a time” will not make it to press. 

Teachers, mentors, experts

One of the key aims of ELINZ is to improve the competency, skill, professionalism and practice of its members.  This has benefits not only for the individual, but for any practitioners that individual later engages with, and for the industry as a whole. 

We are looking for senior / experienced practitioners (members and non-members) who are interested in helping our more junior / less experienced members with up-skilling and providing advice and education (by way of articles or written guidelines, or lectures by video or webinar for example) and providing mentoring and leadership.

Rest assured, you do not have to be a certified genius, but practitioners who are generally successful at all levels of the jurisdiction (mediation / negotiation, ERA, Employment Court) are encouraged to contact the Secretary on secretary@elinz.org.nz for further information.

Notices

On behalf of the Institute and our members, we would like to express our extreme shock, disbelief and sadness at the events of 15 March 2019.  Our hearts go out to the victims, their families and the Muslim community.

This is not who we are as a nation.  Do not let it become who we are.

Kia kaha Christchurch.

Some of you may be aware that Thomas Goddard, CNZM, retired Chief Judge of the Employment Court, passed away on 14 March 2019.

Chief Judge Christina Inglis has asked us to publish the below obituary.

T G Goddard CNZM
Retired Chief Judge of the Employment Court, Tom Goddard, died peacefully on 14 March 2019 after a lengthy illness. Tom carved out an early legal career in defamation and labour law, before joining what was then the Labour Court in 1989. He became the Chief Judge of the Labour Court shortly afterwards. Two years later he was appointed as Chief Judge of the newly established Employment Court, a role he held for 14 years, from 1991 to 2005.
As Chief Judge, Tom oversaw the transition not just of two different iterations of the specialist Employment Court, but also of significantly different pieces of legislation. In this role he presided over the Court through an era of compulsory unionism and its subsequent demise, followed by a period characterised by many as reflecting a purely contractual approach to employment relationships, through to the more recent focus on mutual obligations of good faith between employer and employee. Throughout, Tom was a strong voice for fair dealing according to the rule of law.The 1990s proved to be a particularly testing time for the Court, and for Tom as Chief Judge. In a paper delivered in 1997, he referred to “an unremitting campaign from some quarters for the abolition of the Employment Court” and criticism directed at the Court which “even to lukewarm supporters of the rule of law must have seemed disconcerting and disquieting”. This period has been described as a time when there was an “almost continuous attack on the specialist jurisdiction”.Tom’s legal legacy is substantial. During his time on the bench he delivered in excess of 1000 substantive judgments, many of which set the scene for the way in which the law was to develop over time and which are routinely cited as authority for what are now uncontroversial and well established principles.Tom is remembered by colleagues for his formidable intellect, his unrelenting grip on the principles he saw as fundamentally underpinning labour law, his dedication and hard work, and his personal and professional resilience.A special memorial sitting of the Employment Court will be held in Wellington later in the year, to provide practitioners and others with an opportunity to formally acknowledge Tom’s valuable contribution to the law. Details of this event will be publicised closer to the time.Christina Inglis
Chief Judge Employment Court

The ELINZ Team

Want to know who’s steering this ship?  Look no further.

Mark Nutsford
President
Email: president@elinz.org.nz
Kelly Coley
Vice President
Email: vice-president@elinz.org.nz
Melanie Swarbrick
Secretary / Treasurer
Email: secretary@elinz.org.nz 
Kate Hellen
Webmaster
Email: webmaster@elinz.org.nz 
Vacancy: Treasurer (voluntary role)
We are currently seeking someone to fill the role of Treasurer on the Executive Committee.  Previous experience in a similar role would be great, but isn’t essential.  Please note, membership of ELINZ is a prerequisite.
For further information, please contact us on secretary@elinz.org.nz

Contact us

Email:
info@elinz.org.nz (general)
membership@elinz.org.nz (membership)
newsletter@elinz.org.nz (newsletter)
complaints@elinz.org.nz (complaints)
Web:
www.elinz.org.nzMobile:
0204 169 8576Post:
PO Box 1284, Shortland Street, Auckland


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