Walker v Procare Health Ltd
 NZEmpC 95
IN THE EMPLOYMENT COURT AUCKLAND
In the Matter of a challenge to a determination of the Employment Relations Authority
Vicki Walker in person
Garry Pollak, counsel for defendant
Interlocutory decision as to whether counsel were prevented from continuing to act in light of — plaintiff challenging amount of award for unjustifiable dismissal — consideration of s143 Employment Relations Act 2000 (resolving disputes promptly) — whether counsel's involvement in pre-litigation stages prevented them from continuing at litigation stage under Vector and r13.5 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (independence in litigation).
Held: The trend was for employment lawyers to become involved in a dispute from the very outset. Support for that practice might be said to be found in the sentiments expressed in s143(b) Employment Relations Act 2000 (“ERA”) (problems in relationships resolved promptly by the parties themselves) and s143(c) ERA (resolving problems — expert problem-solving support to be available at short notice), even though this section only dealt with the objects of employment institutions.
Employment law specialists were likely to remain closely involved in the decision-making process until the matter was eventually resolved either through negotiated agreement, mediation, investigation by the Authority or litigation in the court. The early resolution of disputes should not be discouraged by the court However, where cases proceeded to litigation, counsel had to be proactive in making a realistic assessment at an early stage of whether their involvement in the process had compromised their objectivity.
In general terms the early involvement of counsel in this area of law should not give rise to the type of conflict situation which occurred in . Neither counsel had disqualified themselves. The correspondence between counsel was not in issue and it was unexceptional. The issue was the conduct of the employee and employer, not the conduct or advice of counsel.
INTERLOCUTORY JUDGMENT OF JUDGE A D Ford
A hearing was convened to deal with two interlocutory matters that had arisen in this case. The first related to the issue of legal representation and whether counsel for the parties may be prevented from continuing to act in the light of the Supreme Court decision in, 1 The second related to an application by the plaintiff to call evidence at the hearing from a Mr Keith Handlee who, at one stage, had acted as a mediator in relation to the dispute. At the hearing, I gave an oral decision on both matters and I now proceed to outline the reasons for those decisions.
The plaintiff, Ms Vicki Walker, has challenged a determination 2 of the Employment Relations Authority (the Authority) in which she was the successfulparty. Ms Walker was employed by the defendant as its financial controller. In his determination, the Authority Member held that her dismissal on the grounds of alleged incompatibility was unjustified and she was reimbursed for loss of earnings and awarded compensation in the sum of $11,500 for non-economic loss.
In her statement of claim, Ms Walker has elected a hearing de novo but she makes it clear that she agrees with the Authority's conclusion that she had been unjustifiably dismissed. The thrust of her challenge is that the compensation awarded both in respect of her loss of earnings and non-economic loss was insufficient to address the financial loss she allegedly sustained.
Up until relatively recently, Ms Walker has been represented in the proceeding by a barrister, Mr Daniel Gardiner. For its part, the defendant at all material times, with the exception of this interlocutory hearing, has been represented by its counsel, Mr Richard Harrison.
What is clear from the Authority's determination is that both parties had involved their counsel in the employment problem virtually from the outset and the two lawyers then became actively engaged in giving advice to their respective clients and in corresponding with each other about the dispute on instructions from the client. This correspondence was identified and relied upon by the Authority Member in his determination.
Not surprisingly, against that background, this Court became concerned about the appropriateness of counsel continuing to act in the matter. In the course of a telephone directions conference on 21 October 2010 recorded in a minute, Judge Travis indicated that the continuing involvement of both counsel may give rise to a problem that had been highlighted by the Supreme Court in the decision. His Honour noted that the pleadings and the determination indicated that both counsel had been closely involved in the events leading up to the dismissal. After making reference to specific paragraphs in the Supreme Court decision, Judge Travis went on to state: 3
These indicate that counsel should not appear where they are or have been personally involved in the matters in issue and might be said to have lost objectivity. It is appreciated that in employment law, counsel often become closely involved in disputes and grievances, even to the extent of taking part in the process and in the decision making. This may have implications for them being able to continue to appear as counsel if the matter goes to trial. Counsel will have regard to these issues and consider their implications for their future involvement in this case.
The matter was then referred to a judicial settlement conference before Judge Perkins on 7 March 2011. The parties were unable to settle but in a minute of the same date, Judge Perkins noted that: “if counsel need to step down in view of the principle then Ms Walker will be unable to find alternative counsel to come up to speed with the proceedings. She would in that event represent herself.”
On 5 May 2011, following on from a further directions conference, Judge Travis noted that counsel had requested a fixture so that submissions could be made to the Court in respect to the representation issue. His Honour noted that Mr Harrison would be filing an affidavit disclosing his role in the plaintiff's dismissal and annexing relevant correspondence and a summary of submissions as to why he should continue as counsel. At that point, Ms Walker was representing herself. Before me, she explained that Mr Gardiner had ceased to act for financial reasons, not because of any perceived problems resulting from the case.
Mr Harrison's affidavit, sworn on 27 May 2011, was subsequently filed along with an affidavit from Mr Geoffrey Smith, a senior manager with ProCare, who deposed that the defendant wished to continue to retain Mr Harrison as counsel. In his affidavit, Mr Harrison outlined his extensive involvement in employment law over a period of 30 years, initially as a full-time union organiser but for approximately the last 20 years as a lawyer specialising in the area of industrial relations. Mr Harrison went on to state:
3. In the case of employees, it is generally the case that representation is sought at the initiation of a disciplinary or other employment process. Advice and representation will be provided to the employee who in most cases wishes to retain this representation through to resolution; whether this be by way of settlement or determination. A requirement to hand over to new counsel on the grounds of having been instructed at the commencement of an employment process (during which advice will have inevitably been given) will only serve to impose additional barriers to employees bringing claims; adding further cost and undermining their confidence in the process given the high degree of reliance and trust they often place on counsel who has been with them from the outset.
4. The situation with respect to employer clients varies depending on size and resource. A specialist employment firm depends on the retention of these clients that provide repeat business while for smaller and medium sized businesses and organisations, the reason for wishing to retain counsel is not significantly different to employees; cost and confidence in retaining counsel with whom they have had dealings, knows and understands their business and with whom they have developed a relationship.
In relation to the matter before the Court, Mr Harrison deposed that his initial involvement was in advising the defendant in relation to the employment relationship problem that had arisen regarding Ms Walker and, although he could not disclose his advice due to confidentiality, he indicated that the process followed was no different...
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