COVID-19: Exposing the Cracks in the Right to Justice

There have been cracks in our legal system for a long time. However, it has taken COVID-19 to expose and widen those cracks to a concerning level. We have read recently about issues with legal aid, but have neglected the very real cracks emerging from our COVID-19 response.

It's phenomenal, in my mind, that of all the rights of the New Zealand Bill of Rights Act 1990, the right to justice has been lost to the smoke and mirrors of the right to refuse medical treatment.

In this article, I discuss my observations of the practical impact of COVID-19 on the right to justice. I will probably ruffle a few feathers in the legal industry: however, if we don't accept and acknowledge criticism, then we will never grow as an industry.

I've been living life against the current: it's a consequence of being a neurodivergent in a neurotypical world. I'm used to being different. I'm OK with people disagreeing with me. I was once told I was not "law firm" material, something I came to learn for myself prior to entering self-employment.

It may be youthful enthusiasm, but I continue to have faith that the legal profession as a whole can see the cracks in the system, and provide better solutions that are not money focused. If it weren't for this fierce passion, I wouldn't waste my time.

We need systemic change. We need better ways of working. We need to reconsider regulations relating to self-employment. We need to promote efficient practices in our institutions. We need to ask questions. We need to do something.

As the saying goes: if you want something done right, do it yourself.

What is Justice?

The right to justice ought to be unquestionably the most important right in the New Zealand Bill of Rights Act 1990: because without this right, one cannot fight for their other rights and freedoms. Without the right to justice, what's the point?

In matters of truth and justice, there is no difference between large and small problems, for issues concerning the treatment of people are all the same: Albert Einstein

Injustice anywhere is a threat to justice everywhere: Martin Luther King

Justice is a process. Justice is an observation of rights. Justice is not the law. The only "just" outcome is one which has been reached after a process which observes natural justice rights. It's not about winning or losing, it's about justice.

Justice is difficult to define. The New Zealand Bill of Rights Act 1990 provides three elements to the right to justice:

• Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

• Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

• Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

The New Zealand Bill of Rights Act 1990 applies largely on an individual approach. My view of justice is that, while any individual may claim a breach, justice can be considered in broader terms. It is a measure of our society. It is a measure of how our most vulnerable are treated: and in the following paragraphs, you'll learn that each vulnerable person or group have been disadvantaged by the COVID-19 response relating to vaccinations.

Whatever justice is, this isn't it.

Legal Profession

The legal profession have failed the people. This is a general position. It is not directed at any one person: however, the profession, as a whole, has contributed to the decline in the right to justice. There have always been issues with respect to accessing affordable legal representation, however, now there is another hurdle: affordable legal representation who will accept vaccine-related matters.

Before you tell me it's unfair to make broad sweeping statements, maybe consider that it's time that we stop looking at this as an individual problem for individual solutions, and consider this a systemic problem for systemic solutions. We can all do better.

Lawmaking by Media

In the first instance, and through no fault of its own, lawyers and representatives have been required to read, understand and interpret legislation in unprecedented urgency. While the Government has been announcing laws, this has largely been law-making by media: leaving legal representatives with little to provide advice on.

Lawyers are ethically required to accept cases, unless it is not their area of expertise or they do not have the capacity. The problem is that, where COVID-19 meets employment, it is largely outside of the expertise of employment representatives, and there is little professional development available to assist in this area of expertise.

This means that many representatives have declined to take on these cases. Honestly, I can't blame them. It's not easy having to provide advice on legislation with such haste. It creates a significant liability for that legal representative. I've had my weekends disrupted by last-minute gazettes, and I am anxious about the upcoming vaccine certificates. I want to give up.

Usually when there is new legislation coming into force, lawyers and representatives have time to follow its progression through Parliament. We have time between Royal Assent and when it comes into force. There are usually seminars and other professional development courses held to assist lawyers in understanding the basics of this new legislation.

None of that has happened. We just don't have the time, and those who have a firm grasp on the matter, guard that knowledge. It is every lawyer, and every representative, for themselves.

The Government's approach has gone to actively undermine the lawyer's ability to facilitate justice. However, there has been no activism in this space. Why not?

Morals v Ethics

Secondly, it is in times of crisis that people show their true colours. Lawyers are people too: and unfortunately, just like the rest of New Zealand, there has been a conflation of 'morals' and 'ethics.' There are many lawyers who will not accept vaccination-related cases, as a result of their own moral beliefs with regards to vaccination.

Ethics and morals relate to “right” and “wrong” conduct. While they are sometimes used interchangeably, they are different: ethics refer to rules provided by an external source (laws, mandates, codes of conduct). Morals refer to an individual's own principles regarding right and wrong.

One of the most fundamental duties of a lawyer is the duty to accept instructions from members of the public within the lawyer’s areas of practice. This is colloquially referred to as the “cab rank rule”. The rule recognises that lawyers have an essential role in facilitating access to justice. Lawyers are not free to turn away people who seek their assistance without good cause.

The Parapet

If you stick your head above the parapet, you will get shot.

Unfortunately, those lawyers and representatives who may be willing to accept these cases have kept their heads below the parapet. I don't blame them. I've faced a significant amount of scrutiny. I have been called a "hopeless advocate" and a grifter. I've been rebuked before the Employment Relations Authority and lectured for not warning my clients of the consequences of not being vaccinated.

We don't scrutinise the media for reporting on issues which are contentious. We don't scrutinise nurses for providing cares to people with different beliefs. They are doing their jobs. Why are lawyers and representatives treated differently? Even amongst ourselves?

Last week, I had an employee approach me who had been turned away by 10 lawyers before reaching me. How is this possible? Never in my career have I had an employee pass through that many representatives before settling on one.

This is why I have a social media presence. If I didn't stick my head above the parapet, the people wouldn't know I was available. However, I shouldn't have been alone. We all should have stood together, and accepted these cases.

Unions and collective power

Unions have failed to use their collective power to provide a precedential guideline for employees and employers alike. The precedential value of a judgment from the Employment Court has been forgotten. There are many vaccination-related matters that ought to have been taken by unions. Unions are claimed to thrive on collectivism and to be founded in socialist ideology: however, when it comes to the issue of vaccines, unions were no where to be found.

I am personally challenging collective agreements. This is not my expertise: however, without union support, these employees have no where else to turn.

It is my view that the best employee advocate, is an employer advocate: because if employers are upholding their rights and obligations, then employee's don't have grievances. While I rarely represent employers, my aims in progressing matters to the employment institutions has always been to create precedent for others. This should be at the core of the union movement. The most powerful voice is that of the Employment Court: it is the first to provide binding guidance.

There will soon be legislation requiring employers to adopt vaccine certificates, and many of these affected employers will be small to medium employers. They do not have the resources for specialist HR advice, and those that do have some legal support, any advice is moot. We are living the stories we had to answer in law exam papers: however, there are real consequences.

The reality is that these small to medium employers rely on the precedent set by larger employers. They rely on this to assist them in their litigation risk assessments. The average cost to have representation through to the Employment Relations Authority is $15,000 to $20,000. Even if the employer is successful, the recovery of costs for a one-day investigation meeting is $4,500 and it is unlikely that they will receive this full amount.

The cost of defending a personal grievance, rightly or wrongly, is significant for small to medium businesses. They do not have the resources of the largest companies.

I am disappointed that unions did not use their collective power to bring disputes relating to the collective agreements. While they may not agree that vaccine-related terminations are redundancies, they have the right to bring the matter to the institutions for clarification. This clarification would have assisted everyone.

It's not about being "pro vaccine."

The New Zealand Amalgamated Engineering Printing and Manufacturing Union was not exclaiming support for recreational drug use when it commenced action against Air New Zealand for their drug testing policies. It was not promoting unsafe working environments. It was ensuring employee rights, and ensuring the correct interpretation and application of the Collective Employment Agreement.

This is about being ethical. It's about rights. It's about employment relationships.

Employment Relations Authority

The Employment Relations Authority are crippled with the significant influx of COVID-19 related matters. I have matters which I filed in January 2021, which I am still waiting for a case management conference for the substantive investigation meeting. In my experience, all matters are being directed to mediation at least once, in an effort to push them further down the road. The problem is: those matters aren't being picked up with any hurry.

There aren't enough Members to hear the number of matters before the Authority. However, the issue goes further: the Authority does not have the support staff required to ensure effective administration.

When I'm required to file with the Employment Court, I can rest assured that I will receive confirmation from a Registrar within hours. However, recently, it took the Employment Relations Authority two weeks to confirm acknowledgement of my filing of briefs of evidence.

When I make an application for urgency with the Employment Court, a case management conference is scheduled within 48 hours. However, when I make an application for urgency with the Employment Relations Authority, my communications aren't often acknowledged for a number of days.

It doesn't matter why the system isn't working. The point is that it's not working: and this is a time where employees are at their most vulnerable, and they are unable to access the systems designed to observe their rights and obligations. I can't push a matter to the Employment Court without first going to the Employment Relations Authority.

My experience is not uncommon, and it is frustrating not only to the litigants, but to their representatives. This isn't an attack on the Authority: this is a plea. Please acknowledge the issues, and please take real, transparent and accountable steps to address the problem.

The hurdles of getting to the Employment Relations Authority

There are already significant hurdles to access justice. For those employees who have found representation, they must still consider the risks of litigation:

• The financial impact of engaging representation.

• The social impact of the risk of having your identity published.

• The risk of a loss, and being responsible for a contribution to the employer's legal costs.

With no precedent relating to the issue of vaccines, we also have no precedent relating to the risk of contribution to costs. In standard times, the legal profession would have agreed that these matters are "test cases" and would not carry risk. However, without any form of certainty, employees are required to carry the significant financial burden of progressing to the Employment Relations Authority.

.... and when I seek to address this problem by Crowdfunding, I get a published determination which made a finding of litigation funding ... and before you say "the determination didn't say that", you have only read one, of four, versions of that determination ...

Speedy, informal, and practical justice

The problem doesn't stop there. For those who can get representation to progress their matters to the Employment Relations Authority, the parties should anticipate an 18-month wait before receiving a determination from the Employment Relations Authority. The purpose of the Employment Relations Authority is to "deliver speedy, informal, and practical justice to the parties to any matter before it."

The Employment Relations Authority is anything but speedy: in fact, I've had matters progress quicker through the Employment Court and the High Court. Here's some examples:

GF v New Zealand Customs Service (Employment Relations Authority)

• 30 April 2021: GF Terminated

• 11 May 2021: Statement of Problem filed (with urgency), as well as application for removal and interim reinstatement.

• 12 May 2021: Directed to mediation.

• 3 June 2021: First Case Management Conference.

• 3 June 2021:Interim reinstatement withdrawn on the basis the matter would progress with urgency.

• 14 June 2021: Removal declined.

• 24 and 25 June 2021: First Investigation Meeting.

• 6 August 2021: Second investigation Meeting held as the Authority called a further witness from the respondent.

• 31 August 2021: First published decision

• 1 September 2021: Second published decision

• 3 September 2021: Third published decision

• 6 September 2021: Fourth published decision

• 9 September 2021: Statement of Claim

Procedurally, GF gave up her rights to apply for interim reinstatement on the understanding that the matter would progress with urgency. In the determination, the Authority attempts to put the blame on the parties its failure to act with urgency:

• "I was required to deal with two amendment statements of problems". The Statement of Problems is always filed and amended before the Investigation Meeting: which occurred, as planned, on 24 and 25 June 2021.

• "GF's representative, could not attend the first investigation meeting." The Investigation Meeting occurred as planned, and submissions were filed following the Investigation Meeting, also as planned.

• "The availability of a key Customs witness ..." The respondent did not call this witness. The Authority exercised its section 160 powers during the Investigation Meeting to call this witness. Necessary or not, this was a delay of the motion of the Authority.

This highlights another issue with transparency of reporting, but perhaps I'll leave that for another article.

Fechney v Employment Relations Authority (Employment Court)

• 2 September 2021: Statement of Claim to judicially review the first and second published decisions of GF v New Zealand Customs Service.

• 3 September 2021: Case Management Conference. Interim non-publication ordered.

• 9 and 20 September 2021: Interlocutory judgments relating to the intervention of the Attorney General.

• 12 October 2021: Hearing. Non-publication lifted.

GF v Minister of COVID-19 Response (High Court)

• 22 August 2021: Statement of Claim

• 27 August 2021: Case Management Conference

• 6 September 2021: Interlocutory hearing (interim non-publication / leave to represent / joinder). Notified of hearing date during this hearing.

• 7 September 2021: Interlocutory judgment

• 20 September 2021: Substantive Hearing

• 24 September 2021: Substantive judgment

• 28 October 2021: Judgment on non-publication

WN / WXN v Auckland International Airport (Employment Relations Authority and Employment Court)

• 20 August 2021: WN suspended, and informed that Auckland International Airport (AIAL) intended to bring forward the effect of the Vaccination Order.

• 28 August 2021: Statement of Problem filed.

• 1 September 2021: Case management conference with the Authority, who decided it did not have the jurisdiction to halt the employer's process.

• 1 September 2021: AIAL issued notice of termination.

• 5 September 2021: Statement of Claim filed with the Employment Court, and interlocutory application.

• 7 September 2021: Case management conference with Employment Court. Interlocutory matter heard under urgency.

• 7 September 2021: Interlocutory judgment.

• 13 September 2021: Employment Court hearing.

• 15 September 2021: Employment Court judgment.

• 16 September 2021: Case management conference with the Authority.

• 24 September 2021: Investigation Meeting on interim injunction.

• 30 September 2021: WN's employment terminated.

• 7 October 2021: Authority's decision ... on interim reinstatement.

• 8 October 2021: Statement of Claim at the Employment Court.

• 11 October 2021: Case Management Conference.

• 5 November 2021: Employment Court heard the matter.

I've put blood, sweat and tears into these cases. I've burnt bridges, and I'm confident I'm a thorn in the Authority's side. I left the niceties behind a long time ago. I was recently told that one of my vaccine-related matters wasn't deserving of urgency, with one reason being that it took me two weeks to file a Statement of Problem following the date that mediation was officially closed ...Two weeks ... I'm sick. I'm tired. I'm exhausted. I had to wait for legal aid. It shouldn't be this hard.

I do not understand how the development of precedent on unprecedented matters can be considered anything but urgent. Literally, the word "unprecedented" means without precedent. We should want precedent ... right?

Removal to the Employment Court

There is no avoiding the Employment Relations Authority. If you make an application to remove the matter to the Employment Court, it is the Employment Relations Authority who determines this.

However, as the matter of GF v OO [2021] NZERA 251 highlighted, if the first vaccination-related matter is not worthy of being removed to the Employment Court: what is?

(Watch this space for determinations on removal applications for WXN v Auckland International Airport and another removal application which relates to a vaccine-related claim which focusses on the restructure provisions of a collective agreement)

There are significant costs and liabilities associated with pushing matters to the Employment Court:

• The filing fee for a removal application at the Employment Relations Authority is $153.33

• If your removal application is unsuccessful, there is a risk of being required to contribute to the other party's legal costs.

• If your removal application is unsuccessful, you may then make an application for special leave with the Employment Court. The filing fee is $204.44.

• If your special leave application is unsuccessful, there is risk of being required to contribute to the other party's legal costs.

This means that the litigant must seriously ask themselves: is the cost worth pushing this to the Employment Court?

Is it worth the risk that your matter might not be reported correctly?

Is it cheaper and easier to have a "practice run" at the Employment Relations Authority?

If justice can only confidently be achieved at the Employment Court, is it really accessible?

UPDATE: Protections Framework

The limitation to the Right to Justice is now expressed in statute. Read my blog post on the Protections Framework here.

A person seeking goods or services from a "designated premises" must not be refused entry on the grounds that they are not vaccinated.

The New Zealand Courts and Tribunals are not a "designated premises."

If you are refused access from a "designated premises", how will you raise concerns with this refusal, if you are refused entry from a New Zealand Court or Tribunal.

2 December 2021: This morning I received notification from the Employment Relations Authority that my Investigation Meeting for next week would be postponed while the Ministry of Business, Innovation and Employment conduct a "risk assessment." The Member said that he did not believe the Investigation Meeting could be held remotely, and therefore the meeting would be rescheduled.

Let that sink in. The Investigation Meeting could not be held remotely. How does the Employment Relations Authority expect to conduct its investigation if my client is not vaccinated?

3 December: the Chief Justice of New Zealand has confirmed in a media statement that the New Zealand Courts are considering vaccination certificates as an entry requirement.

Conclusion

I make a point to quote the Chief Judge of the Employment Court, Christina Inglis, in almost every legal submission at the Employment Relations Authority or the Employment Court. It is the best way to conclude this article:

If we accept (as I think we must) the basic proposition that employment law is fundamentally designed to serve the broader public interest and, in particular, employees and employers (the end goal), and that employment practice provides the necessary infrastructure to do so, we need to ask some hard questions about the extent to which what we are doing and how we are doing it supports, undermines or obfuscates the goal. I suggest that if we do nothing the future looks decidedly bleak for the very people this specialist jurisdiction is designed to serve. It goes without saying that it would be a most unhappy irony if access to the employment institutions was to become the playing field of an elite few.

When are we going to start asking those hard questions?

The future is now, and it is bleak.

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Legal AF Limited t/a Ashleigh the Advocate

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