Nothing to see here

Tikanga principles a consideration in two recent Employment Court cases

Introduction

For many employees, deciding to bring a claim before the Employment Relations Authority (Authority) or Employment Court (Court) often creates a degree of anxiety. 

As the outcome of proceedings and the party names become part of the public record, with decisions being made available online, reputational damage which can impact on future employment prospects is often a source of concern. 

For employers, at times commercial information might form part of the proceedings, which also presents a degree of concern should those details become public. 

In certain circumstances, an avenue for employees or employers may be to seek a non-publication order. In a nutshell, non-publication orders ensure certain details remain unpublished, whether it be the employee's name or commercial information of the employer.  

In the recent case of MW v Spiga Limited,[1] the Employment Court reviewed the current law surrounding non-publication orders, providing guidance as to the relevant considerations at play. Of interest in this case, tikanga principles were also assessed and deemed relevant.  

Background

In short, the employee in this case had initially entered into a settlement agreement with the employer.  Subsequently, the employer breached the confidentiality clause of the settlement agreement. The employee brought proceedings against the employer for breaching the confidentiality clause and sought non-publication orders which were declined by the Authority. The employee then challenged the decision in the Employment Court.

Considerations

The Court considered various issues in making its decision. 

In respect of employees, the Court acknowledged that publication of an employee's name might have consequences, such as impeding their ability to obtain new employment.[2]

The Court also considered non-publication in the context of the employer where confidential information or commercially sensitive material was in issue. Should an employer wish to seek such orders, the Court makes plain that the application needs to be adequately supported by evidence which demonstrates that protection is required in the interests of justice.[3]

The Court further noted that occasionally consideration will be given to the non-publication of the employer's name. Although an unusual step, the Court observed this generally was to ensure any order in favour of the employee was not undermined.[4]

Of interest the court noted that one option available is anonymising the names of participants in the proceedings and commented this option should be used more often.

In applying the approach taken by the High Court in JM v Human Rights Review Tribunal, the Court held there must be evidence provided showing that the adverse consequence could reasonably be expected to occur. [5] By this, care must be taken to ensure relevant and sufficient evidence is provided when applying for non-publication orders.

A further relevant consideration was that the employee came from a small community. The employee in this case indicated that their reputation would be destroyed if their name was published. 

The relevance of Tikanga   

Of interest in this case, tikanga was considered relevant. This involved submissions from tikanga experts identifying relevant tikanga principles.[6] 

The Court observed that the subsequent hara (a breach) by the employer of the terms of the settlement agreement disrupted the state of ea (balance) initially achieved by the settlement agreement. 

The Court accepted that tikanga is a relevant approach that the Authority and the Court might take to non-publication. Tikanga principles were held to be factors that may be considered - along with other factors - in the weighing exercise. [7] 

However, the Court observed that a cautious approach should be taken when engaging with tikanga and its principles.   

The Test

The Court began by acknowledging that open justice is of fundamental importance and that there must be sound reasons for departing from open justice in the making of an order of non-publication.[8]

The Court outlined a two-limbed test:

1. Firstly, there must be a reason to believe that the specific adverse consequences could reasonably be expected to occur. In assessing this, the Authority or Court will look to the evidence. The Court may also be required to draw inferences but these must be reasonable and must be taken from evidence; [9] and 

2. Secondly, the Authority or Court must consider whether the adverse consequences that could reasonably be expected to occur justify a departure from open Justice. Ultimately this is a weighing exercise where the following factors may be relevant: [10]

(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. 

In considering the above, the court was of the view that the evidence met the test of showing that adverse consequences could reasonably be expected to occur and that it was in the interests of justice to depart from open justice.

Among other factors, the Court again referenced the role of tikanga, noting the hara (breach) by the employer disrupted the state of ea (balance) brought about by the settlement agreement, and that the consequences of the hara to the employee should not be exacerbated by further publication, which ran the risk of causing the employee whakamā (shame). 

Accordingly, the court set aside the Authority's determination and granted the non-publication order.

Implications

Both employers and employees may benefit from the granting of a non-publication order. 

As can be seen above, there are many factors the Authority or Court will consider before granting a non-publication order. Often this is a fine weighing exercise which may - where relevant - include tikanga principles. Corralling the right evidence is vital. 

Our team has a wealth of experience assisting both employees and employers with employment disputes and we are uniquely placed to assist you in navigating the complexities of non-publication orders. 

If you require advice, please contact Ben Molloy on @email or 09 306 0625 or Isaac Eustace-Smith on [email protected] or 09 985 2534.