Can you tell your partner about a confidential employment settlement? By Lawrence Anderson
- 7 minutes ago
- 4 min read
In Mackey v Shearing NZ Ltd [2026] NZERA 146: the Employment Relations Authority found that a modest settlement, along with an advocate’s direct fee invoice was valid.
Because advocates are generally required to be GST registered, it is more cost-effective for both parties if an employer paying an agreed amount to make two separate payments – one to the employee and one to the advocate, and claim the GST back. It also reduces the risk of bad debts, where the employee takes the money and disappears without paying the advocate.
I have been saying for a while now that s 150A is routinely over-read by Authority Members, which could interfere with bargains the parties were perfectly entitled to strike.
Solicitors usually have trust accounts to receive awards (minus their fees) so this issue doesn’t arise, but the Authority’s treatment of advocates’ invoices has not been consistent.
Mackey v Shearing NZ Ltd is not an express appellate-style ruling on s 150A, but it is still a useful case because the Authority enforced a certified s 149 settlement that required $3,500 plus GST to be paid directly to the employee’s non-lawyer representative’s company on an invoice.
Ms Mackey applied for compliance because Shearing NZ had not paid her the agreed $3,000 under s 123(1)(c)(i), and had not paid the agreed representative-costs contribution, nor provided the certificate of service promised by the settlement. Shearing NZ accepted that it had withheld those things, but tried to justify its own non-compliance by saying Ms Mackey had breached confidentiality.
Shearing NZ then widened the fight by seeking penalties against Ms Mackey and also against SK & Co Employment Law Limited, trading as Sacked Kiwi Limited, on the basis that Kara Orviss had supposedly aided, abetted and procured an alleged breach of confidentiality by disclosing that the parties had settled.
The background was not complicated. Ms Mackey’s employment ended in September 2024. A personal grievance was raised on her behalf by Sacked Kiwi. The parties attended mediation on 4 March 2025 and entered into a settlement that was certified under s 149.
The Authority restated the obvious but apparently necessary point: once certified, the agreement was final and binding and could only be brought before the Authority for enforcement purposes.
Mr Watson-Paul said the company made a deliberate decision not to pay and not to provide the certificate because he believed the settlement had effectively been repudiated, or cancelled by Ms Mackey’s alleged confidentiality breach. That was the position put forward. It was without merit.
Member Kennedy-Martin dealt with that point finding that the submissions were not clear about the legal basis on which Shearing NZ thought it could withdraw from its obligations under a certified settlement. She then set out the actual position: certification under s 149 makes the terms final and binding, the cancellation provisions in ss 36 to 40 of the Contract and Commercial Law Act 2017 do not apply, and under s 151 the remedy for “repudiation” of a settlement is compliance. One side does not get to decide it is cancelled because it thinks the other side has been naughty.
On the confidentiality issue, the employer only got part of what it wanted, and not the useful part. The Authority found Ms Mackey did breach the confidentiality clause by telling her partner about the settlement and mediation. But the more pointed allegation, that she directly told Brooke Smith, was not proven. The Member said it seemed likely Ms Smith knew about the settlement, but it could not determine how she came to know it. That is a long way short of the clean factual platform the employer wanted for its counterattack.
The Sacked Kiwi angle also went nowhere. Shearing NZ alleged Sacked Kiwi and Ms Orviss had aided and abetted the breach because Ms Mackey supposedly advised that Ms Mackey could confidentially tell her “nearest and dearest” (we note that the Employment Relations Act 2000 is silent on this issue). The Authority sensibly rejected that. Ms Orviss accepted that on some occasions she has discussed limited confidential sharing in mediation contexts, but she could not recall doing so here. The Member found there was no evidence of aiding and abetting and no penalty was awarded against either Sacked Kiwi or Ms Orviss; Shearing NZ’s claim failed outright.
Nor did the employer get much mileage out of the one breach it did prove against Ms Mackey. The Authority made an order that she comply with the confidentiality clause going forward, but declined to impose a penalty. The Member took into account Ms Mackey’s evidence that her partner would have found out once the money was transferred and, having regard to the merits and the Authority’s equity and good conscience jurisdiction, held that a penalty was not appropriate. So after all the fuss, the employer ended up with a technical breach finding and not much else.
Meanwhile, on the issue that actually mattered, Shearing NZ was found to be in breach of clauses 2, 3 and 4 and was ordered to comply within 28 days. The Authority also noted the breaches were intentional, adjourned the question of penalties against Shearing NZ under s 138(5) to allow compliance first, and reserved costs. That is not a vindication of the employer’s stance. That is the Authority effectively telling it to stop mucking around and do what it agreed to do.
This is where the case becomes genuinely useful on advocate fees. I am not saying Mackey finally determines every possible s 150A argument - it does not. The determination does not expressly analyse s 150A. But in practical terms the Authority was faced with a certified settlement containing a direct-payment advocate-costs clause and enforced it exactly as written. That is how it should be done to avoid disputes over fees.
Further, it was always Parliament’s intention that non-lawyer advocates can be paid separately in s 149 settlements.
To answer the question in the title, it's still ambiguous, but making a big deal of it seems unwise and certainly petty.
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