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When the gloves come off, everything is public

Date: 07/06/2017

One of the objectives of the Employment Relations Act is to promote mediation as the primary problem-solving mechanism. This is consistent with trying to maintain good faith in employment relationships, because the reality is that once the parties commence litigation, the gloves come off and the matter becomes public.

There are invariably times when mediation or other forms of negotiation won’t be successful in bringing an employment relationship problem to an end. This can be for any number of reasons including wildly different expectations between the parties, uncertainty as to the legal position and often, personalities and ego.

Where an agreement cannot be reached, a claimant will be faced with choosing between progressing their claim to the Employment Relations Authority, or cutting their losses and walking away.

It makes sense that a party will only generally take a case to the Authority if they think they have a good chance of winning. This can bring financial and non-financial remedies, as well as vindication of the claimant’s position.

This sounds good in theory. But in practice, there are a number of considerations that go beyond the legal merits and potential financial return, that can be overlooked.

It may come as a surprise to learn that despite the private nature of an employee’s relationship with their employer, Authority hearings are generally open to members of the public and the media. The same goes for the decisions the Authority issues which are published on the Ministry of Business, Innovation and Employment Website and regularly picked up and reported on by news media. What can be published includes the names of the parties, what happened and what remedies were awarded.

This all stems from a core underlying principle of the New Zealand legal system which is that justice should be open and be seen to be done.

This principle is not absolute and there are exceptions where names or details may be kept out of the public domain. However, these exceptions are relatively rare and are usually reserved for situations where a party or someone related to the proceeding will experience specific adverse consequences as a result of information or their identity being made public.

Examples of this include where publicity will have a negative impact on a person’s health, or where the information is commercially sensitive and not otherwise publicly available.

Embarrassment, awkwardness or unwelcome attention will generally not be sufficient reason to warrant a departure from open justice. In other words, the fact that certain details will not cast a person in the best light is unlikely to persuade the Authority to prohibit publication of that information or the person’s identity.

What this means is that anyone taking a case to the Employment Relations Authority needs to at least consider whether they are comfortable with what may be particularly sensitive matters being aired in a public forum and potentially reported upon.

It is worth noting that Authority Members do take a balanced approach in terms of what they put into their written decisions. They would generally avoid including detail that will cause unnecessary aggravation or damage to reputation.

However, even allowing for this, there are times where reference to certain unflattering details simply cannot be avoided because they are particularly salient to the Authority’s decision or reasoning.

Both employer and employee parties who end up in an employment dispute need to think about the full implications – even the winning party can suffer adverse reputational consequences. This is often a compelling motivator in the settlement of disputes.

Ultimately, however, the problem might be one of an unjustified stigma that attaches to employees who pursue claims against their employer. I know from direct experience that employers do consider these things in recruitment decisions. This seems unfair as employees who have been wronged should have be able to seek recourse without being punished for doing so.