When it comes to the granting of suppression and non-publication orders by courts and tribunals, including the Employment Relations Authority, New Zealand punches above its weight. We were reminded of this when the “Wanaka Couple” who had connections to the law profession, sought and received name suppression in relation to their breach of lockdown restrictions earlier this month.
The name suppression only lasted about a day, so what was the point of going to the trouble to apply for it?
Similarly short periods of name suppression seem appropriate in serious criminal cases where whanau are to be informed of the charges before the general public are, via media. But in addition to embarrassingly public misdemeanours such as the Wanaka lockdown breach, non-publication orders are also rampant in the employment jurisdiction and we provide some examples below.
Tauranga City Council v Geoffrey Brown: Mr Brown was an IT engineer whose employment dispute in 2014 cost him a lot more than his job. With the exception of one Court of Appeal decision, all publicised documents anonymised the parties to ITE (presumably Information Technology Engineer) and ALA (A Local Authority), or P v Q. Why would a Council want to be anonymised? This lack of transparency was indicative of the sort of dysfunction within the Council that led to it being taken over by the Minister of Local Government.
Oranga Tamariki v SLU: SLU was ordered to pay former colleagues $4,800 in penalties for breaching a NDA clause in his mediated Record of Settlement. Those lucky recipient colleagues were anonymised, and because of that, SLU also wanted to be anonymised (probably to save reputational harm). Member Doyle declined, saying SLU was to be named several weeks later, but it didn’t happen probably because we called them out on their use of a certain legal precedent in a way that we consider defamatory.
RPW v H: Employment advocate Allan (H)alse, along with his company (C)ulturesafe NZ Ltd were each ordered to pay $26,400 to RPW, a Waikato rest home and this was another enforcement under s149. The anonymisation drew attention to the financial shenanigans that got a whistleblower “mediated” out followed by the departure of the Chief Executive. The ERA’s ability to penalise an employment advocate or other non-parties is subject to a Judicial Review in the Court of Appeal.
The ERA can and often does refer the parties to mediation. If the mediation is successful, and the parties agree that they should be anonymised for reputational reasons, the ERA usually treat the matter as having been resolved in mediation at the outset – here’s a recent example.
The Streisand Effect is something most lawyers and judges understand as “an example of psychological reactance, wherein once people are aware that some information is being kept from them, they are significantly more motivated to access and spread that information”. For example, the attempt by the court to anonymise Tauranga City Council and its former employee and whistleblower Geoffrey Brown (ITE v ALA) led to a research-based discovery of a leak that allowed the parties and their pseudonyms to legally be published without any form of protest by the Council.
As Hamilton employment advocate Allan Halse says, “Abuse survives in secrecy”. So where claims of gagging are lawfully pubished on social media, the Streisand Effect may cause members of the public to look for possible abuse behind that secrecy, and NDAs are not necessarily a barrier as those familiar with the Zelda Perkins / Harvey Weinstein matter will appreciate.
Earlier this year Zelda Perkins and Professor MacFarlane launched their # cantbuymysilence campaign. Their goal is to “stop the misuse of NDAs so that they are ONLY used for the purpose for which they were created – the protection of intellectual property and trade secrets”.