Excluding evidence - by Sharon Ritchie

Updated: Mar 21

Recently Employment Court cases have seen close control of the pleadings and evidence by the judges. It appears this may be the latest move in the adaptation of employment law as a universal jurisdiction rivalling the High Court, but with a rather different idea about the nature of justice.

The employment jurisdiction has very broad provisions as to evidence.

The Employment Relations Authority can do whatever it likes procedurally, being an inferior tribunal whose staff are not necessarily even legally trained.

The Employment "Court' is not really a court and the Evidence Act 2006 does not apply. Section 189 of the Employment Relations Act 2000 says that evidence may be admitted even if it is not strictly legal evidence.

It does not however say that evidence may be excluded. On the contrary, it has requirements as to natural justice - hearing the other side's case - which appear to be the latest target for attack.

The Act refers variously to the interests of justice, but also gives judges the power to act as they see fit. It also requires equity and good conscience, and good faith.

In a case involving two women pursuing the New Zealand Nurses Organisation in December 2020, Judge Kathryn Beck made a complex set of orders about what they were allowed to say in their court case. In another case in February 2021, where a woman is pursuing the Bank of New Zealand, Judge Joanna Holden gave a detailed statement of what she would allow to go on the court record.

The exclusion of evidence and the close reworking of pleadings, by judges who have previous records for condoning and sanitising illegal behaviour, raises serious questions about the New Zealand legal process - yet again.

Neither Parliament, nor their own controlling Ministers, nor the influential public servants of the Ministry of Business, Innovation and Employment, which runs the tribunals and makes their rules, shows any inclination to control their antics.

There appears to be no political will to control what is rapidly becoming a damaging national embarrassment.

The auditors might think of packing their bags. Their Enron moment could be nigh.

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