H v A Ltd NZEmpC AUCKLAND

JurisdictionNew Zealand
CourtEmployment Court
JudgeChristina Inglis,G L Colgan,M E Perkins,Judge,Chief Judge
Judgment Date13 June 2014
Docket NumberARC 3/14
Date13 June 2014

[2014] NZEmpC 92

IN THE EMPLOYMENT COURT AUCKLAND

Court:

Chief Judge G L Colgan

Judge Christina Inglis

Judge M E Perkins

ARC 3/14

In the Matter of a challenge to a determination of the Employment Relations Authority

BETWEEN
H
Plaintiff
and
A Limited
Defendant
Appearances:

RE Harrison QC and C Abaffy, counsel for plaintiff

D France, counsel for defendant

Challenge to a determination of the Employment Relations Authority declining to prohibit publication of the plaintiff's name and identifying details — plaintiff was challenging his dismissal from his employment with the defendant for alleged sexual harassment — sought name suppression on the basis of the harm it would have on his son and who had dyspraxia and exhibited self harming behaviour — respondent argued that the high threshold for non-publication had not been met — whether the non-publication determination related to a matter of procedure and a challenge to it was barred by s179(5) ERA (determination about the Authority's procedure) — what was the scope of the right of challenge under s179 ERA — whether the applicant for a non-publication order had to show exceptional circumstances before an order would be granted — whether the Court should take into account international human rights instruments (specifically United Nations Convention on the Rights of the Child) when the interests of children might be affected by publication of accounts of proceedings.

The issue was: whether the determination related to a matter of procedure for the purposes of s179(5) ERA; what was the scope of the right of challenge under s179 ERA; whether the applicant for a non-publication order had to show exceptional circumstances before an order would be granted; whether the Court should take into account international human rights instruments (specifically United Nations Convention on the Rights of the Child (“UNCROC”)) when the interests of children might be affected by publication of accounts of proceedings.

Held: Scope of s179: It was common ground that the Authority had issued a determination. The proper approach to s179(5) required an analysis of its text and purpose. Relevantly, while s179(1) remained in its original form (conferring a broad right of challenge), subs (5) was part of a suite of amendments enacted in 2004. The reform was a legislative response to the judgment of the Court in David v Employment Relations Authority which held that the application of an Authority practice direction preventing the cross-examination of witnesses could be the subject of review.

Although s179(5) limited the right of challenge in respect of an ongoing Authority investigation, once that investigation has been completed a party has a right of challenge in the Court by way of hearing de novo ( Employment Relations Authority v Rawlings).

In assessing whether a decision of the Authority was procedural or not, it was more important to have regard to the effect of the decision rather than the nature of the power being exercised ( Oldco PTI (New Zealand) Ltd v Houston). In Rawlings, the Court of Appeal expressed itself in broad agreement that determinations which were able to be challenged were not confined to decisions on the substantive merits of a particular case, having regard to the way in which “determination” was used in s179(5).

The Authority's investigatory procedures and meetings should generally proceed uninterrupted by challenges. It would undermine the evident purposes of s179(5) and the Act more generally to allow or encourage challenges at a pre-determination stage, thereby increasing costs, reliance on legalities and technicalities, and generating delays. Section 179 fell within Pt 10 ERA. Its objects were set out in s43. The statutory focus was on the expeditious resolution of employment relationship problems and the relatively informal way in which the Authority was to operate, without undue regard to technicalities.

It was clear that the policy intent underlying s179(5) was to enable the Authority to settle matters coming before it at the appropriate level, with as little judicial intervention during the investigative process as possible. A balance was struck between the policy imperatives underlying the reforms and access to justice considerations in the retention of the right of challenge or review once the Authority had made a final determination on the matter before it.

However, s179(5) was not to be construed as wholly ousting access to the Court at an interlocutory stage. While not impacting on (and, in particular, delaying) the substantive outcome of a proceeding, a refusal to grant a non-publication order might well cause significant and irreversible damage-not only to the applicant but also affected non-parties. Although an ability to challenge the refusal of a non-publication order at an interlocutory stage might disrupt unfinished Authority business, in the sense identified by the Court of Appeal in Rawlings, its distinguishing characteristic was that it was not the sort of determination that could subsequently be remedied on a challenge or by way of review.

A refusal to make a non-publication order did not fall within s 179(5), not because such an order directly impacted on a party's rights or obligations but rather because the denial of such an order had an irreversible and substantive effect. It could not have been Parliament's intention that a litigant in the plaintiff's shoes would have such an important issue (non-publication) determined at first and last instance by the Authority, with no recourse to the Court to review the Authority's refusal.

Accordingly, a determination of the Authority will be amenable to challenge where it has a substantive effect, which cannot otherwise be remedied on a challenge or by way of review.

The plaintiff has a right of challenge in the present case, which was not excluded by operation of s 179(5) (Oldco not followed.)

Application for interim non-publication orders (per majority, Judge Inglis dissenting): It was important that this case was not only a civil proceeding (and not a criminal prosecution) but that it was also private litigation as distinct from a public law case. The combined civil and private law categorisation of the proceeding was important in that it distinguished a number of authoritative judgments of the Court of Appeal in both criminal proceedings and civil public law proceedings. The jurisdiction in this case was statutory and not inherent (cf: Lewis v Wilson & Horton Ltd) and it was Parliament's intention in cl 12(1) sch 3 ERA (power to prohibit publication) that was relevant.

Non-publication of names or other identifying particulars in employment cases would be “exceptional” in the sense that such orders would be made in a very small minority of cases. However, an applicant for such an order did not have to make out, to a high standard, that there were such exceptional circumstances that a non-publication order was warranted. That was not the standard that Parliament prescribed for such orders in the Employment Court or the Authority.

The application of UNCROC to New Zealand domestic law was considered by the Supreme Court in Ye v Minister of Immigration. The Supreme Court accepted that, in light of New Zealand's obligations under art 3(1), the interests of New Zealand children were to be regarded as important in [immigration] decision-making processes. Several UNCROC articles were engaged by the circumstances of this case. It was a fundamental tenet of fairness and humanity that children should not suffer for the sins of others, including their parents, if it was possible avoid such suffering.

Where it was established by evidence that publication of information relating to a proceeding (including, in particular, identifying particular persons) might cause harm to, or affect unreasonably, a child, this would be a factor in determining whether there should be a non-publication order, if such consequences may be avoided.

Based on evidence before the Court there was a real risk of adverse consequences to the plaintiff's son if the plaintiff's name and identifying details are published. The risk was well founded and appreciable. A “floodgates” argument about the consequences of making a non-publication order in this case was not a convincing or just reason to refuse what was otherwise a meritorious submission.

Complaints of sexual harassment should be treated seriously but this stance would not be weakened by prohibiting publication of the plaintiff's identity on an interim basis. The position might change after the Court had examined and determined the merits of the plaintiff's dismissal.

It was in the overall interests of justice between the parties and within the community generally that an order prohibiting publication of the name and identifying details of the plaintiff be made.

Challenge allowed. Order granted.

  • A The plaintiff is not prohibited by s 179(5) of the Employment Relations Act 2000 from bringing this challenge (unanimous judgment).

  • B Until further order of the Court there will be an order prohibiting publication of the parties' names and other identifying particulars (judgment of the majority).

JUDGMENTS OF THE FULL COURT

REASONS FOR JUDGMENT OF JUDGE Christina Inglis

1

This case relates to the narrow, but important issue, of the sort of matters that give rise to a right to challenge a determination of the Employment Relations Authority during the course of its investigation. The particular issue relates to a determination of the Authority declining to prohibit publication of the plaintiff's name and identifying details, 1 but the principles that apply to determining the scope of the right of challenge, and when it may be exercised, have more general application. It is for this reason, and against the backdrop of differing approaches that have been adopted in this Court, that a full bench was convened.

2

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