Christine Rose v The Order of St John

• Jurisdiction: New Zealand
• Judge: Chief Judge GL Colgan
• Judgment Date: 21 December 2010
• Court: Employment Court
• Docket Number: WRC 26/10
• Date: 21 December 2010

In the Matter of personal grievance proceedings removed from the Employment Relations Authority

Between

Christine Rose

Plaintiff

and

The Order of St John

Defendant

[2010] NZEMPC 163

WRC 26/10

FSIN THE EMPLOYMENT COURT

WELLINGTON

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.

Appearances:

Helen Cull QC, counsel for plaintiff

Susan Hornsby-Geluk and Chloe Luscombe, counsel for defendant

INTERLOCUTORY JUDGMENT OF Chief Judge GL Colgan

1 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.

2 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.

3 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.

4 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.

5 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.

6 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 law

7 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):

148 Confidentiality

• (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 persons to resolve any problem in determining or agreeing on new collective terms and conditions of employment, subsections (1) and (3) do not apply to any statement, admission, document, or information disclosed or made in the course of the provision of any such mediation services.

• (6) Nothing in this section—

  • (a) prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discoverable or admissible and which existed independently of the mediation process) merely because the evidence was presented in the course of the provision of mediation services; or

  • (b) prevents the gathering of information by the Department for research or educational purposes so long as the parties and the specific matters in issue between them are not identifiable; or

  • (c) prevents the disclosure by any person employed or engaged by the Department to any other person employed or engaged by the Department of matters that need to be disclosed for the purposes of giving effect to this Act; or

  • (d) applies in relation to the functions performed, or powers exercised, by any person under section 149(2) or section 150(2).

8 This section has been interpreted on a number of occasions by this Court and the Court of Appeal. The first case in this Court was Shepherd v Glenview Electrical Services Ltd 1 Next was Jesudhass v Just Hotel Ltd at both first instance in the Employment Court 2 and on appeal. 3 The latest case was Te Ao v Chief Executive of the Department of Labour, 4 another judgment of this Court.

9 The principles distilled from these cases are as follows. All communications in mediation “for the purposes of the mediation” attract the statutory confidentiality except possibly where public policy dictates otherwise. Documents which are prepared for use in, or in connection with, a mediation come within the ambit of s 148(1) as do statements and submissions made orally at the mediation or a record thereof. Only documents which come into existence independently of mediation are excluded from this confidentiality. The important distinction is that documents or other communications that exist independently of mediation may be admissible or discoverable even if they were referred to or even had their genesis in mediation. The Te Ao case illustrates one exception to confidentiality on the public policy basis enunciated by the Court of Appeal in Jesudhass. That concerned the entitlement in law of the mediator to give evidence of what had occurred in a mediation chaired by him as a result of which he was himself dismissed and subsequently challenged this by personal grievance.

The defendant's case against admissibility

10 The defendant objects to the plaintiff giving evidence that her complaint about workplace bullying was not dealt with at the mediation. It says that if permitted to give this evidence, the plaintiff will prevent unfairly the defendant from responding meaningfully to it. That is because s 148 will preclude the defendant from calling evidence about what was discussed at the mediation in order to establish its...