Advocate barred from representing employer

In a rare move the Employment Relations Authority has ordered that the employer’s advocate is barred from representing them in the ERA hearing for unjustified dismissal.

The firm representing the employer had previously represented the employee in the disciplinary hearings held by the employer.

The ERA held that even though a different advocate was representing the employer now, the firm’s previous representation of the employee meant that it would be placing the employee at a disadvantage if the same firm represented his employer.  He had communicated matters to his advocate which he was entitled to regard as confidential.  In addition his advocate advised the ERA that they would give evidence for the employer as to what had transpired at the disciplinary meeting.   The ERA held that allowing the firm to represent the employer would be breach of natural justice and potentially constitute an abuse of the Authority’s process.

It is worth noting that advocates can represent parties in the ERA and Employment Court without needing to belong to any organisation that imposes rules of conduct (such as the Employment Law Institute) in a similar way to the Law Society Rules for lawyers.

Alan Knowsley
Employment Lawyer
Wellington