Can you keep your name out of it? Name Suppression in the Employment Context

This case involved an employment dispute where MW, an employee of Spiga Limited, sought non-publication (name suppression) orders after the company breached a Settlement Agreement (Agreement) and disclosed MW’s name publicly in breach of the confidentiality provisions.

The Employment Relations Authority (ERA) initially declined to grant non-publication of MW’s name, leading MW to challenge this decision in the Employment Court.  The Court eventually granted the non-publication order.  The Court’s comments here were of particular significance given the number of parties that became involved in this test case for non-publication orders in employment law.

The Court used this decision to ultimately set out guidelines for considering non-publication orders, including a number of factors such as privacy, tikanga, and the potential impact of publication on social media.  The case was heard by a full bench of the Employment Court and there were two judgments made.  We summarise key aspects drawn from both judgments below.

Majority Decision

The Employment Court reviewed the approach to non-publication orders, emphasising the balance between open justice and privacy interests.  The majority decision adopted the conventional approach and granted a permanent non-publication order for MW’s name and name suppression. 

The majority decision was made by Judges Corkill, Holden and King.  In adopting the “conventional approach” here, they focused on the Erceg test and the principles of open justice. 

The Erceg test is derived from the Supreme Court case of Erceg v Erceg [2016] NZSC 135, which provides a legal framework or “test” around determining whether a non-publication order should be granted in the civil context.  The test requires an applicant to show that there are sound reasons for a non-publication order, and that these reasons outweigh the presumption of open justice. 

The principle of open justice is fundamental in New Zealand’s legal system.  It says that Court proceedings are to be open to the public for transparency and accountability.  There are, however, situations where this is overridden to protect the interests or the privacy of people involved.  Traditionally, this only happens in exceptional circumstances.

Many arguments were put forward specifically focussing on the employment context and the nuances of that space, those arguments included:

• the focus on relationships between parties in an employment context;
• the need to preserve confidentiality where there are settlements reached at mediation; and
• the potential for any Authority or Court decision to adversely affect an individual seeking employment, given that decisions are all publicly available online.

The role of tikanga in this space was also considered quite generally.  The majority acknowledged previous case law and confirmed again, that tikanga is relevant to both the Authority and Court’s approach to non-publication (and employment law generally).  They stated however, that caution must be applied when engaging tikanga and its principles - the Courts are not the makers of tikanga.  Tikanga was described as contextual, and that it should be applied on a case-by-case basis.  They noted that the way in which tikanga is said to apply, whether it will be relevant to the employment relationship, and how much weight will be accorded, will depend on the context.  It was also recognised that the Court and Authority must engage with tikanga through care and manaakitanga, in a way that upholds its mana and integrity. 

Minority Decision

Chief Judge Inglis issued a separate decision which reached the same ultimate conclusion, but through a different approach.  Judge Inglis’ approach was that the provisions of the Employment Relations Act and the statutory regime came first, rather than the Erceg test or open justice principles. 

Through this lens, she drew on many considerations, with a number relating to and recognising tikanga.  In her view, tikanga can inform the Court’s approach at a general (framework) level and at a case-specific level as it can be “a means or a mechanism to further the objectives of an employment relationship and of the wider jurisdiction”.

In this context, the more holistic and purposive approach is required to account for the relational and specialist nature of this jurisdiction, which tikanga will account for.   Judge Inglis considers that this points squarely away from open justice being given pre-eminent status.

Points of Note

While the minority decision is not binding on future Courts, it does provide some food for thought in terms of how the Authority or Court might look at similar arguments and opens the door for a more bespoke approach in the specialist employment jurisdiction.

At a general level, the Court’s decision here suggests that – even using the conventional approach from the Civil courts - there may be some softening of the test for non-publication in the employment context.