Russel Drakes Explains…


As a break from the ongoing Covid related information that has been the focus of our recent newsletters we wish to draw your attention to the procedural requirements associated with advising staff of their rights to obtain support and representation in all aspects of their employment relationship. 

The question of when an employer must notify the employee of this right is one that we are frequently asked. 

Case Law reinforces that an employee is entitled to seek support and presentation whenever they face an issue that “has the potential to impact on their employment terms and conditions”. This can be a very broad field of activity and therefore employers are best to approach this with cautiousness. 

The potential consequence of an employer not advising the employee of this right prior to implement any potential change is that the outcome of such change may be challenged on the basis that it is conducted in a procedurally unfair manner – solely due to the fact that the employee was not advised of their right to obtain support and representation. 

This obligation commences from the time the potential employee is offered employment – with them then having to be provided with sufficient time to seek such support and representation prior to signing and returning the employment agreement. Then, once the employment commences, the obligation impacts on any meetings or discussions that have the potential to:

  • Change aspects of the job description 
  • Amend any provisions contained within the employment terms and conditions
  • Expose the employee to new policies impacting on their employment 
  • Change any structure that the employee works within 
  • Result in the providing of disciplinary or performance warnings 

In as much as the employee has no right to dictate who the employer may seek advice and assistance from, an employee is free to choose their own support people or representatives, or even decide that they do not want such assistance. 

The role of the support person is solely to act as a listening ear and emotional support function with them not generally having the right to speak within any meetings held with the employee. The role of the representative is however to speak on the employee’s behalf, with what the representative says being able to be received as if the employee had said this themselves. 

It would be unusual for a support person to be a professional advocate; however, a representative may be anyone from a family member or friend through to a professional advocate, Lawyer or Union Official. 

In as much as the employee is entitled to seek independent support and representation, the employer is as well, with it being highly valuable for the employer, particularly when dealing with complex matters or difficult/professional representatives. 

If a decision of the employer is challenged in the Employment Relations Authority as being unjust, and the employer did not seek support and representation, a decision may go against the employer on the basis that the Authority considers that they had the ability to seek such advice and elected not to. 

As professional advocates, we provide support and representation to employers only. 

Our services are engaged by clients in all aspects of the employment relationship for example:

  • Providing advice to ensure that the employers processes are correct; and 
  • Writing or checking documentation to be provided to staff to ensure it is robust and legally sound:
  • Facilitating meetings with employees to ensure procedurally correct processes are followed;
    • in representing the employer in seeking to resolve disputes – including representation in mediation, the Employment Relations Authority and the Employment Court. 

Please feel free to contact us if you need any form of professional support and representation. 



  • The COVID Support Payment (CSP) went live on 1 March. The payment is $4000 per business, plus $400 per full-time employee, capped at 50 FTEs, or $24,000 for those who have experienced a 40 per cent revenue drop. In addition, a top-up loan is available under the Small Business Cashflow Loans Scheme with extended and flexible tax payment dates.
  • People who are symptomatic or a household contact can now order RATs through the newly launched RAT Requester Site. The website contains features to prevent people ordering too many tests to ensure everyone can access one. RATs are still available without an order from Community Testing Centres for eligible individuals and can also be purchased in some retail stores.
  • As of 11.59 pm Friday 11 March, the Covid Isolation Period goes from 10 days to 7, and household contacts are not required to self-isolate again within a 90-day period of their first isolation date. 
  • Employers can only claim the Leave Support Subsidy if an employee is requried to be absent for 4 of more days, with a second week payment only availabel if the employees absence is for 11 or more days. 

As a final note we may be heading into Orange next week, months earlier than expected. Heres hopping. 



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