Decisions made in the Employment Court and Employment Relations Authority are usually published, unlike mediation, which is confidential. However, both bodies can grant non-publication orders that prevent parties’ names and identities from being published.

Such orders appear to be more readily granted in the employment jurisdiction than in the past. This new approach is partially due to the growing recognition of the potential harm of publishing parties’ names, particularly employee names, in employment disputes.

What is a non-publication order?

The court and the authority have 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that “all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published” as per schedule 2, clause 10, and schedule 3, clause 12 of the Employment Relations Act 2000.

Grounds for non-publication orders

When considering whether to grant an application for a non-publication order, the court and the authority must begin by recognising the principle of open justice. In other words, it is important that justice is seen to be done and that there is a public interest in having an open and transparent justice system. Most hearings are open to the public and the media, allowing decisions to be scrutinised.

Generally, publicising details of wrongdoing serves many purposes, including educating the public, acting as a deterrent and warning others. This must be balanced against the individual rights, including a person’s right to privacy and the disproportionate harm it may cause to have their names published.

The party applying for a non-publication order must prove that valid reasons exist for deviating from the presumption of open justice. The harm that can be caused by the publication of party names in the employment jurisdiction can include damaging an employee’s future employment prospects. Recent Covid-19 vaccination cases in the employment jurisdiction have demonstrated the negative effects of publication.

Conclusion

The rationale behind suppression orders is that some parties may be reluctant to take an employment dispute to the court or the authority if they know their name can be published or made publicly available if the matter is high profile. The reality is that, often, regardless of whether they win or lose, employees who take their employers to the court or the authority are tainted and find it more difficult to obtain further employment.

Employers regularly conduct Google and employment law database searches of prospective employees, and it is very easy to find out whether a candidate has previously been involved in employment litigation. This creates an uneven playing field in employment disputes and personal grievances. Employers know that the likely damage of being named in a public court decision to an employee’s reputation is a massive disincentive to going all the way to litigation.

This places employees under significant pressure to settle out of fear that they may be publicly named if the matter proceeds further. It is also true that adverse court decisions can damage employers, but the impact is likely to be less pervasive and long-lasting. For these reasons, there is a strong case for reversing the assumption that name suppression will not be granted in employment cases and mandating that where a party is successful in a claim, their identity will be kept confidential unless there are good reasons otherwise.

CASE STUDY

In JGD v MBC Ltd [2020] NZEC 193, the applicant sought 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 the employment relationships.

The court granted the order, which was supported by both parties, noting in paragraph nine 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.