News and Publications

The Employment Court recently considered the test for granting non-publication orders in MW v Spiga Limited.

Case details

The case involved an employee who had exited after a short three month period of employment, with the exit arrangement subject to a confidential Record of Settlement signed at mediation with the Ministry of Business, Innovation and Employment (MBIE).

The employee then claimed breaches of duty by the employer of the confidentiality and non-disparagement clauses, and in enforcing these, sought non-publication orders.  The Employment Relations Authority (ERA) held that the confidentiality clause of the settlement had been breached, and made an order to preserve the confidentiality of the settlement sum but declined to make an order in respect of MW’s name. MW challenged this aspect of the ERA’s determination.

The Decision

Although MW’s challenge was on a narrow point of law, the Court considered it appropriate to review the general test for granting non-publication orders. The Court held:

• While the general rule of open justice is of fundamental importance, there may be reasons for ordering non-publication where there is good reason.
• Aligning with previous cases, it was appropriate to adopt the High Court test from JM v Human Rights Review which is “does the evidence show that the suggested adverse consequences could reasonably be expected to occur?” from publication.
• The Authority’s ability to anonymise the names of participants in the proceedings, which requires no formal order, should be used more often.

The Court here applied a two-step approach as follows:

• First, whether adverse consequences could be expected to occur due to publication. The Court commented “The necessary evaluation will focus on such evidence as has been submitted and/or is available. Inferences may be required by the Authority or the Court. But these must be reasonable inferences that may be taken from the evidence, based on the specific circumstances of the case, when considered in context.”
• Second, whether this justified a departure from open justice in the circumstances of the case. The Court commented that this is a weighing exercise.  The following are examples of factors that may be relevant to the weighing exercise:
  • The interests of the person or entity applying for the non-publication order.
  • The interests of the other party or parties to the litigation.
  • The interests of any third party.
  • The public interest including the rights of media.
  • Any further issues of equity and good conscience; and
  • Tikanga and it’s principles, values or concepts.

Applying these principles, the Court set aside the ERA’s determination and ordered non-publication of MW’s name.

Message for Employers

This case is relevant to employers who find themselves in ERA or Employment Court proceedings, particularly where sensitive issues are being determined. If solid evidential footing can be provided for the adverse consequences for the non-publication of name, there may be a good case to put forward for non-publication orders.

This case also highlights the shift in employment law to consider and apply tikanga principles in contexts where it is relevant.

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.

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