Christine Rose v The Order of St John
 NZEMPC 163
FSIN THE EMPLOYMENT COURT
In the Matter of personal grievance proceedings removed from the Employment Relations Authority
Helen Cull QC, counsel for plaintiff
Susan Hornsby-Geluk and Chloe Luscombe, counsel for defendant
Application to introduce evidence that a mediation between the parties did not address the plaintiff's complaint of workplace bullying — allegation the defendant used mediation to address performance issues with the plaintiff and subjected her to a performance review without notification — whether s148 Employment Relations Act 2000 (confidentiality) precluded evidence from the mediation being introduced — whether the mediator could give evidence as to what was discussed — impact of s103A (personal grievances) on admissibility of the general subject matter of mediation.
Held: All communications in mediation “for the purposes of the mediation” were confidential pursuant to s148(1)(d) ERA except where public policy dictated otherwise. It was not correct that if R introduced evidence of what was discussed at mediation, then St John would be prevented from responding, as 148 ERA prohibited it from calling evidence of what was discussed. To be consistent, if R was entitled to give evidence that a particular topic was not dealt with at the mediation, St John, must in fairness be entitled to say that it was. Although it may be difficult for the Court to determine the truth of R's assertion that bullying was not covered at mediation, that was not a reason to exclude the evidence. In this case, there was a record of the outcome of mediation to which there was no admissibility objection, which may well corroborate the account of one side or the other.
Section 189 ERA (equity and good conscience) guided the consideration of the admissibility issue with reference to s8 Evidence Act 2006 (general exclusion). St John could cross-examine R about admissible evidence but not about what was inadmissible. The difficulty about whether the Court could reach a decision about what was discussed was not a ground for inadmissibility.
The mediator was not a competent or compellable witness under s148(2) ERA (no person who provides mediation services may give evidence in any proceedings). However, the parties were represented by solicitors who could if asked, provide a truthful and accurate account.
An important part of R's claim of unjustified constructive dismissal was that despite raising with her employer a serious complaint about bullying, the employer did nothing or at least insufficient to meet its obligations. R's case was that St John's breach caused her to resign, constituting constructive dismissal. If the evidence established that St John had breached the terms and conditions of R's employment agreement, then R's repudiation of the breach by resignation may amount to constructive dismissal. The evidence R wished to lead related to the important question under s103A ERA (personal grievance) of how St John treated R. None of that was made inadmissible by s148 ERA. It was appropriate to a consideration of St John's compliance with s103A ERA as to whether it made good on its stated intention of addressing those matters. How it did so was inadmissible in evidence but whether it did so was admissible.
INTERLOCUTORY JUDGMENT OF Chief Judge GL Colgan
As a result of discussions, exchanges of memoranda, and minutes, the issues for decision have narrowed to one. It is whether the plaintiff is precluded from giving evidence that a mediation arranged by the defendant for a specified purpose did not deal with that matter. The plaintiff does not seek to enlarge upon that negative proposition by, for example, giving evidence of what was said or done in the mediation that may support her assertion that the agreed subject matter of the mediation was not addressed at it.
This issue arose at an early stage when the proceeding was before the Employment Relations Authority. The defendant challenged the plaintiff's entitlement to refer to these and other matters in her statement of problem. The Employment Relations Authority removed the proceedings to this Court for hearing at first instance. Counsel agree that the issues between them were essentially ones of evidence admissibility rather than pleading in the sense that they would arise ultimately for determination as ones of admissibility irrespective of what the pleadings included. Again by agreement, a procedure was arranged so that the plaintiff's intended evidence in (then) two controversial areas would be made known to the Court, as it has been, so that the argument has been able to take place against that factual background.
During her employment Ms Rose became dissatisfied with her treatment by her immediate supervisor that she described as “bullying”. Her employer proposed, and she agreed, that her concerns would be discussed in mediation conducted under sections 144 and following of the Employment Relations Act 2000 (the Act). That took place by arrangement with the Department of Labour's Mediation Service and the mediation was convened and conducted by a statutory mediator. Also present at the mediation were Ms Rose, her lawyer, her supervisor, and the employer's lawyer. Ms Rose seeks to lead evidence that her complaints were not dealt with and that the mediation addressed issues other than her own dissatisfactions with her employment, for the resolution of which it had arranged the mediation.
The mediation between the parties had its genesis in a letter dated 28 August 2009 sent by the defendant to the plaintiff. Although the letter also dealt with other matters between the parties, under a heading “Mediation”, it said this:
Unrelated to this allegation, you have recently raised concerns about your working relationship with myself.
In order to demonstrate St John's commitment to resolving these matters in good faith, I would like to suggest that we take part in a mediation, with a view to exploring the issues in a constructive, independent and confidential environment, with the assistance of an impartial Labour Department mediator.
As you will be aware, this is a standard approach for dealing with such relationship issues. While it is naturally entirely up to you as to whether you take part, I do strongly encourage you to do so. …
You are welcome to seek advice from a lawyer or support person in respect of the … mediation, and that person is also welcome to attend any meeting between us. As is our standard practice in such situations, we would ask our legal adviser to attend also.
Ms Rose says that she understood from this correspondence that the proposed mediation was to discuss the issue of her working relationship with her supervisor and an allegation that she had been “bullied” by him. She says she did not understand that the intention was to deal in mediation with either a particular allegation of misconduct against her or questions of her work performance.
The mediation took place over two separate days a week apart. Ms Rose complains that her complaint about “workplace bullying” was not dealt with in the mediation. She wishes to say that it dealt with a performance review of her as may be indicated by the written agreement that was signed by the parties evidencing the outcome of the mediation.
The defendant says that Ms Rose is not entitled to give such evidence because s 148 of the Act requires that it not be disclosed in proceedings such as this. Section 148 provides as follows (with relevant passages underlined):
(1) Except with the consent of the parties or the relevant party, a person who—
(a) provides mediation services; or
(b) is a person to whom mediation services are provided: or
(c) is a person employed or engaged by the Department; or
(d) is a person who assists either a person who provides mediation services or a person to whom mediation services are provided—
must keep confidential any statement, admission, or document created or made for the purposes of the mediation and any information that, for the purposes of the mediation, is disclosed orally in the course of the mediation.
(2) No person who provides mediation services may give evidence in any proceedings, whether under this Act or any other Act, about—
(a) the provision of the services; or
(b) anything, related to the provision of the services, that comes to his or her knowledge in the course of the provision of the services.
(3) No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (I), is required to be kept confidential.
(4) Nothing in the Official Information Act 1982 applies to any statement, admission, document, or information disclosed or made in the course of the provision of mediation services to the person providing those services.
(5) Where mediation services are provided for the purpose of assisting...
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