The curious case of the disappearing Employment Relations Authority member

Jim Roberts, partner at law firm Hesketh Henry, says Employment Relations Authority explanations about their department member "do not seem to add up". Photo / Supplied

A member of the Employment Relations Authority - the senior judicial officials who rule on employment disputes and personal grievances - has abruptly departed citing trauma and grief, and left chaos in his wake with more than a dozen cases heard but unruled.

The episode has drawn sharp criticism of the authority from employment lawyers, as unresolved cases potentially face years of further delays and tens of thousands of dollars in added legal costs.

The ERA in a statement said it regretted the additional delays and costs borne by complainants and “is trying to resolve outstanding matters as quickly as possible for affected parties”.

Employment law firm Hesketh Henry had one client caught up in the saga who had first filed an employment grievance more than three years ago. After a five-day hearing in August, senior associate Sam Houliston said he was informed earlier this year the matter was being handed over to another member with no explanation given.

“It’s been over three years and a significant amount in legal fees,” Houliston said.

He said the sudden departure likely meant months of work last year preparing, and the five-day hearing itself, had been wasted with it likely having to be done over as ERA hearings were not allowed to be recorded and oral evidence was therefore lost.

“We see a fundamental issue with the authority process because the evidence isn’t recorded,” Houliston said.

Questions to the ERA about the matter were answered with a statement saying 19 cases were affected by the departure of the member, which they said came after his two-year warrant expired in March. The authority said most would not require full re-hearings and would be managed by considering written evidence only.

“[The member] has served the full term for the warrant to which he was appointed by the Governor-General,” a statement attributed to an ERA spokesperson said of the reasons for the departure.

Hesketh Henry partner Jim Roberts said the explanations from the ERA matched what lawyers had been told, but he believed it was vague and stretched credibility.

“If what the authority is saying is true, why didn’t they extend his warrant? People’s warrants expire all the time, there’s never been a case like this in the authority, or the tribunal before it. What they are saying does not seem to add up,” Roberts said.

According to published ERA rulings the last decision published by the member was in December - four months before the expiry of his warrant.

The ERA declined to address these concerns: “We will not be commenting on the observations from lawyers,” a spokesperson said.

The Herald is not naming the departed member, but this week visited his address seeking comment.

In a statement, the member apologised for the fallout from his departure.

“In 2021 I suffered the loss of a very close family member. I felt this loss very acutely and continued to grieve throughout my time at the authority. I still grieve,” he said.

“I sincerely regret the matters outstanding when my time at the authority ended. I was unable to complete those outstanding matters because I was unwell at the beginning of this year.”

ERA members, of which 23 remain to manage all of New Zealand’s employment disputes alongside the Employment Court, are paid an annual salary of $258,700.

The member in question had served an earlier term on the ERA, before spending a decade working in employment law at large corporates such as banks. He had rejoined the ERA in March 2021.

Roberts said he had known the member for decades and was both surprised and worried by developments.

“He’s been a pretty good operator. I’m really concerned for [him], and people who know him are really concerned, and they don’t know what happened, and nobody can get hold of him,” he said.

David Fleming, a barrister at employment firm Fleming Singleton Law, also had a case before the departed member with a hearing conducted last May that had yet to produce a ruling.

“It’s far from ideal, and it’s adding a lot of extra costs to people as well as the health costs of having these things hang over you for longer than necessary. It’s certainly not business as usual,” Fleming said.

“There was no communication from the authority chief about what happened or why. Whatever happened to [the departed authority member], I do feel people are entitled to the courtesy of a proper explanation.”

Fleming, Jordan and Houliston all said the current chaos was merely an extra layer of delays on top of an already lethargic ERA, with statutory requirements to deliver rulings within 90 days of a hearing regularly missed.

The ERA said in a follow-up statement that in the past 12 months 88 per cent of its rulings had been delivered within the statutory deadline, and in last month’s Budget it had received funding to appoint seven additional members.

Last year figures obtained by National MP Paul Goldsmith showed the average waiting time between filing a complaint and receiving a ruling from the ERA had blown out to 340 days. In the pre-Covid years of 2017-2019 the process took around 200 days.