Challenge to Employment Relations Authority decision declining a non-publication order over employee’s name – Employment Relations Act 2000, schedule 2, clause 10 and schedule 3, clause 12 – correct approach to follow in considering non-publication orders in employment context – should the general rule of open justice apply as a fundamental principle? – relevance of privacy interests – role of tikanga – effect of publication, including on social media platforms – relevance of confidential or commercially sensitive material – what evidential standard should be applied?
MW v Spiga Ltd [2024] NZEmpC 147
MW was employed by Spiga Ltd, a small company, for around three months. An employment relationship problem arose. This was settled at mediation.
The settlement was signed off by a mediator under s 149 of the Employment Relations Act 2000.
Spiga made the payments required by the settlement agreement but did not comply with the confidentiality clause. This led to MW taking action in the Employment Relations Authority, something he had wanted to avoid by settling with the company.
MW claimed in the Authority that Spiga did not comply with both the confidentiality and non-disparagement clauses. MW sought non-publication orders.
The Authority found that Spiga had breached the confidentiality clause in the settlement agreement and made a non-publication order to preserve the confidentiality of the settlement sum.
The Authority declined to make the non-publication order sought in respect of MW’s name. MW challenged that aspect of the Authority’s determination in the Employment Court.
The Employment Court took the opportunity to review the approach to non-publication orders in general (in both the Authority and the Court).
A full court (four judges) was convened to hear the challenge.
Leave was granted to numerous interested organisations (including unions, employer organisations, media organisations, the New Zealand Law Society, New Zealand Bar Association, The Law Association and Te Hunga Rōia Māori o Aotearoa Incorporated) to appear and be heard.
Applicable principles: Employment Relations Act 2000, schedule 2, clause 10 and schedule 3, clause 12 – correct approach to follow in considering non-publication orders in employment context – should the general rule of open justice apply as a fundamental principle? – relevance of privacy interests – role of tikanga – effect of publication, including on social media platforms – relevance of confidential or commercially sensitive material – what evidential standard should be applied?
Held (unanimously): The Authority’s determination as to non-publication is set aside and a permanent non-publication order is made in respect of MW’s name and identifying details.
In respect of the general guidelines, two judgments were issued.
Majority judgment (Judges Corkill, Holden and King)
The majority concluded that the general rule of open justice being of fundamental importance applies in the employment jurisdiction. There must be sound reasons to justify a departure.
In most cases:
(1) There must be reason to believe the specific adverse consequences could reasonably be expected to occur (based on evidence or reasonable inferences taken from the evidence).
(2) The Authority or Court must consider whether the adverse consequences that could reasonably be expected to occur justify a departure from open justice in all the circumstances.
Factors which may be relevant in the weighing exercise include (a) the circumstances of the case; (b) the interests of the person or entity applying for a non-publication order; (c) the interests of the other party or parties to the litigation; (d) the interests of any third party; (e) the public interest, including the rights of media; (f) any further issues of equity and good conscience; and (g) tikanga and its principles, values, or concepts. Weighing of these factors is a matter for the specialist bodies, applying their particular expertise.
The majority also noted that one option which should perhaps be used more often is that of anonymising the names of participants. This requires no formal order, meaning that participants may speak freely about the litigation and offers protection in respect of internet searches.
Chief Judge Inglis
Chief Judge Inglis preferred a very different approach.
Under this approach, described as a “recalibration”, the general rule of open justice would not apply.
There would be no presumption against non-publication. Non-publication orders could be made where the Authority or Court considered it appropriate, with the ultimate touchstone being equity and good conscience.
The Chief Judge also did not endorse the majority’s view as to the increased use of anonymisation of party names, noting that she saw potential issues with such an approach.
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