In the Employment Relations Authority (Authority) and Employment Court (Court), unless a party to the proceeding makes a successful non-publication application, the names and identifying details of the parties and witnesses will be published as a matter of course. The starting point when the Authority or Court looks at an application for non-publication, is the principle of open justice. This is a fundamental principle of our legal system, encapsulated by the saying that “justice must be seen to be done”.
The principle of open justice effectively operates as a rebuttable presumption. This means that the good reasons must be given to displace the presumption and obtain a non-publication order.
“Good reasons” mean case-specific adverse consequences that would follow if non-publication was not awarded. Adverse medical consequences are typically relied upon. Commercial sensitivity has also been relevant in other cases.
Reputational damage?
In a number of recent cases, reputational damage has also been deemed a relevant consideration. This is an interesting trend because public determinations will almost always impact on future employment prospects for an employee, even if they are successful. Removing this risk to employees would likely encourage individuals to proceed to a Hearing.
In a 2021 decision[1], Chief Judge Christina Inglis observed:
The reality is that the routine online publication of decisions of the Employment Relations Authority and the Employment Court creates a search mechanism for those who wish to use it, for example, to screen applicants for employment. It has become increasingly well recognised that the spectre of publication puts many employees off pursuing their claims, which in turn raises important access to justice issues.
In my view an employee’s ability to pursue legal entitlements under the Employment Relations Act 2000, without the fear that doing so may damage future employment prospects, is a factor which is of particular relevance to the balancing exercise at both an interim and permanent stage of the process; and which may lead to a finding that the broader interests of justice meet the high standard necessary to displace the presumption in favour of open justice.
In a decision of the Authority from October 2022[2], the Authority member referred to the Chief Judge’s comments above in deciding to suppress the names of the Applicant, the Applicant’s partner, the Respondent company, and the names of other employees at the Respondent company.
The Authority and Court’s recognition of the impacts of reputational harm caused by publication will continue to have relevance for non-publication applications before the Authority and Court, however, we still think it will be the exception rather than the norm. For non-publication to be available as a matter of course, legislative change would be required.
It is noted that a proposed member’s bill currently sits in the ballot – the Employment Relations (Privacy of Parties to Proceedings) Amendment Bill (Proposed Bill). The Proposed Bill has been put forward by Helen White.
One of the Proposed Bill’s clauses provides that on the application of a successful party, the Authority must order that the parties’ name or identifying particulars not be published unless publication is in the public interest. Such a clause effectively removes the open justice presumption and puts the privacy of a successful party at the heart of non-publication applications.
It is unknown when the Proposed Bill will be drawn from the ballot and whether the Bill will pass its first reading. It is noted that very few Members’ Bills become law and this one is likely to face opposition from the business sector.[3] Despite this, the Proposed Bill does identify a perceived gap in the law. We will watch closely to see how the issue of reputational damage is addressed in future decisions of the Authority or Court and potential legislative change.
If you have any questions about non-publication orders, please feel free to be in touch with our Employment Team.
[1] Chief of New Zealand Force v Darnley [2021] NZEmpC 40.
[2] GWH v ZOG Ltd [2022] NZERA 536.
[3] https://www.parliament.nz/en/pb/research-papers/document/00PLLawRP2017011/members-bills
