Litigation, Disputes and Employment
The principle of open justice has been considered fundamental in New Zealand, including in the employment jurisdiction. However how the presumption of “open justice” sits with a party’s desire to litigate in private has become an increasingly hot topic, as more attention has been given to the extent to which a party’s name being published, and particularly the employee’s (or former employee’s) name being published, can or does affect their decision to pursue a claim at all, or their future employment prospects having done so.
The Employment Relations Authority (Authority) and the Employment Court (Court) have wide discretionary powers to make non-publication orders, including in respect of a party’s (usually an employee’s) name and identifying details. Non-publication is becoming more frequently sought, often to prevent either an actual or perceived risk that the bringing of a grievance or claim itself will impact an employee’s future employment prospects, irrespective of whether or not they win. Non-publication orders also gained increasing relevance during the Covid period, as employees who sought to challenge the validity of their employer’s Covid mandates also sought non-publication to avoid becoming the unwitting “public face” of these challenges.
The issue of non-publication, and the Authority’s and Court’s recent approaches to it, were recently considered by the Court in a case that is of particular significance given the large number of intervening parties granted leave to participate. The Court used this case to set out guidelines for consideration as to whether non-publication is appropriate in any particular case, and did so with reference to the long-standing presumption of open justice, and a number of other factors, including privacy, tikanga, and the impact of social media.
In MW v Spiga Limited, as is often the case, the matters at issue were limited in scope, and largely unexceptional. MW and Spiga were in an employment relationship, problems arose, and they attended mediation. Agreement was reached over the terms of MW’s exit from their employment, and a settlement agreement entered into and certified by a mediator. MW subsequently claimed that Spiga breached the confidentiality and non-disparagement terms of settlement, and sought non-publication orders. The Authority accepted the confidentiality provision had been breached and granted an order to preserve confidentiality, but declined to prohibit publication of MW’s name.
MW challenged the Authority’s decision on suppression, and the Court took the opportunity to consider the appropriate approach to non-publication in general. It convened a full bench to hear the issue, and granted numerous interested parties leave to appear and be heard. The Court was unanimous in its decision that the challenge succeeded, and non-publication should be ordered, but the majority differed from Chief Judge Inglis as to why.
The Majority Decision
The principle of open justice is that Court proceedings should be held openly and transparently in public, with the media being able to report fairly and accurately on what occurs to maintain public confidence in the administration of justice. The principle has traditionally been considered fundamental, and while it can be departed from in certain circumstances, that should only occur to the extent necessary to serve the interests of justice.
The majority of the Court considered that open justice remained of fundamental importance, and should only be departed from when the party seeking non-publication could show specific adverse consequence(s) that were sufficient to justify an exception being made. So before non-publication will be granted, the applicant must first show that such an adverse consequence could be reasonably expected to occur, as demonstrated on the evidence.
The majority considered that the Court should then carry out a weighting exercise to assess whether the adverse consequence that may result from publication justified a departure from the presumption of open justice. That assessment should take place as against the particular circumstances of the case. Relevant factors included the interests of both parties and any third parties, public interests, including the media’s, issues of equity and good conscience, and tikanga - its principles, values and concepts.
It was noted that there is a strong connection between employment law and privacy law, both of which seek to balance rights where there is an inherent imbalance of power. As such, privacy will hold particular relevance in any assessment as to the appropriateness of non-publication where the evidence is intensely personal. The majority also acknowledged the relevance of tikanga to non-publication, but endorsed a cautious approach, as what tikanga applies and how much weight it should be accorded will depend on the particular employment relationship, and the context of the case.
The majority also accepted that publication of an employee’s name could have consequences, including because some potential employers search publicly available decisions. But they noted that they had seen no evidence that being named in a decision led to being “backlisted”, or that employees were increasingly not pursuing claims for fear that would occur. The majority did however concede that AI may result in online publication being utilised by algorithms used for hiring decisions, and acknowledge that social media platforms were changing the nature of publication, and the challenges associated with non-publication.
For MW, the majority considered that non-publication was appropriate. The parties had attended a confidential mediation and agreed terms of settlement, including that the terms be confidential. A small number of people knew about the parties’ dispute, but not so many that non-publication would have no utility. Publication would also potentially negatively impact MW’s prospects of future employment, and the relationships they had established in the industry. With regards to tikanga, Spiga’s hara (breach) disrupted the state of ea (balance) achieved by the settlement agreement, and that breach should not be exacerbated by further publication. In the circumstances of the case, as the adverse consequence could reasonably be expected to occur, and non-publication was consistent with tikanga, and equity and good conscience, the interests of justice therefore warranted departure from open justice.
As an alternative to non-publication, the majority also observed that anonymisation may be granted more frequently in the future, but did not (and was not asked to) set out a test for anonymisation.
Take Away
MW v Spiga has served to highlight the importance of properly considering the applicable principles and weighing them against the presumption of open justice, in light of the evidence available. The decision also continues the jurisdiction’s trend towards increasingly incorporating principles of tikanga where they are relevant and applicable to the particular employment relationship. We expect that both these matters will continue to mean that irrespective of which party is seeking non-publication, the evidence presented to the Authority (or Court) will be key to any determination, and ensuring you have the right evidence will therefore be vital.
Our employment team is well versed in assisting both employers and employees in the context of employment disputes generally, and in relation to non-publication orders in particular.
