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ServicesName Suppression in Employment Cases
Oct. 16, 2022
In the recent Employment Court case of JGD v MBC Ltd [2020] NZEC 193, the applicant sought interim name suppression through non-publication orders on the basis that naming the applicant would cause irreparable damage to his personal and professional relationships, that there was no broader public interest in naming him (as would be the case in a criminal matter), and that to name him would undermine a core objective of the Act to recognise the unequal power balance in employment relationships.
The Court granted the order, which was supported by both parties, noting at [9] that:
"It does not sit comfortably within the legislative framework that a party may approach the Authority or Court for vindication of their employment rights and, at the same time, attract publicity which has a likelihood of inflicting further damage on their employment relationship or creating a barrier to future employment."
It was also a relevant factor that the application was made on an interim basis, as there is a lesser public interest in disclosing key details while allegations are unproven.
Decisions made in the Employment Relations Authority or Employment Court are usually published. While mediation is a confidential process, once a dispute is escalated to the Court or Tribunal, the decision and details of the parties will be reported unless an order is made prohibiting publication of part or all of the proceedings. This has ramifications for both the employer and the employee - for the employee, this may impact their future job prospects and for the employer, may damage the reputation of the business and thereby deter potential employees or clients.
Decisions may be anonymised in certain circumstances. The Authority or Court has the discretion to direct that "all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published", as per schedule 2 clause 10 and schedule 3 clause 12 of the Employment Relations Act 2000.
In determining whether to grant name suppression, the Authority or Court will exercise its discretion in line with applicable principles.
The fundamental principle of open justice, which holds that justice must be seen to be done, will be considered when determining an application for name suppression in any context. Generally, publicising details of wrongdoing serves many purposes: to educate the public, to act as a deterrent, and to warn others.
This must be balanced against the individual rights at play - the right to privacy of the individuals involved and the disproportionate harm it may cause to have their name published, even for the innocent party.
If you are considering action but have been deterred by the potential publication of your details, please contact our firm for further assistance at employment.law@becker.co.nz
Nina Becker
Staff Solicitor
Disclaimer: The information contained in this article is general in nature and not tailored to your personal circumstances. It is only current as at the date posted and should not be relied upon as legal advice. If you require legal advice, please contact us for further assistance.