Non-publication of name and identity in employment claims
The Employment Court (the Court) and the Employment Relations Authority (the Authority) have the discretion to grant non-publication orders that prevent parties’ names from being published. Such orders appear now to be more readily granted in the employment jurisdiction than they have in the past. This is partially due to the growing recognition of the potential harm of publishing parties’ names (particularly employee’s names) in employment disputes.
This article examines the recent approach to the granting of non-publication orders in the employment jurisdiction.
What is a non-publication order?
The Court and the Authority have the power to order that evidence, or the name of any party, witness, or any other person, not be published and made publicly available.[1]
Some parties will be hesitant to take their dispute to the Court or Authority if they know their name will be searchable on Google or even published in the news if the matter is high-profile. This may also mean parties may reach settlements which are strongly influenced by a fear of being publicly named.
Approach to granting non-publication orders
When considering an application for a non-publication order, the Court and the Authority start from the position that it is important for justice to be seen to be done, and the public interest is having a system of justice that is open and transparent. Open justice means hearings are open to the public and the media, which allows hearings and decisions to be known and scrutinised.
The party applying for a non-publication order has the responsibility of disproving the presumption of open justice. This can be achieved by that party proving valid reasons exist for a non-publication order to be granted.
Traditionally in the employment jurisdiction, reputational harm alone is not enough to justify the granting of a non-publication order. However, there is now a growing acceptance the publication of party names can have a negative effect on future employment opportunities. Recent COVID-19 vaccination cases in the employment jurisdiction have highlighted the negative effects of publication.
Despite recent trends, it is important to note a high standard must still be met before the Court or the Authority will deviate from the starting point of open justice.[2]
How does this compare to other jurisdictions?
Similar issues related to publication arise in the tenancy jurisdiction. Traditionally, tenants have been very aware of the fact that taking their landlord to the Tenancy Tribunal (the Tribunal) could very likely involve the publication of their name in a tribunal decision and could, therefore, impact on their ability to rent in the future.
However, recent legislative reform has indicated a move towards anonymity in the tenancy jurisdiction. If a tenant or landlord is successful at the Tribunal hearing (or for the most part successful), they can now apply for a suppression order. In such circumstances, the Tribunal must grant the suppression order, unless the Tribunal considers publication is in the public interest or is justified because of the party’s conduct or any other circumstances of the case.[3] Even if a tenant or landlord is unsuccessful at the Tribunal hearing, they can apply for a suppression order, and the Tribunal can decide, having regard to the interests of the parties and to the public interest, whether to grant the order.[4]
This legislative change enables parties in the tenancy jurisdiction more scope to obtain a suppression order. However, discretion still sits with the Tribunal in making the ultimate call.
Conclusion
There is growing recognition of the harm that can be caused from the publication of party names in the employment jurisdiction (for example, harm to an employee’s future employment prospects). As a result, non-publication orders appear to be more readily granted in the employment jurisdiction than they have been in the past. Recent legislative change in the tenancy jurisdiction has also indicated a move towards suppression of party names.
Assistance
If you would like to know more about matters raised in this article, we would be happy to assist.
Paddy Miller, Associate
[1] Employment Relations Act 2000, sch 10 cl 10 (Employment Relations Authority) and sch 3 cl 12 (Employment Court).
[2] Erceg v Erceg [2016] NZSC 135 and Crimson Consulting Ltd v Berry [2017] NZEmpC 94.
[3] Residential Tenancies Act 1986, s 95A(1).
[4] Residential Tenancies Act 1986, s 95A(4).
