Judge Corkill is right – Strategic Litigation against Public Participation (SLAPP) is an overseas phenomenon. We don’t have anti-SLAPP legislation, and a recent petition for it failed to garner support.
Even the Employment Court judge’s acknowledgement that Bay of Plenty District Health Board’s proceedings against Culturesafe NZ Ltd, Allan Halse and Ana Shaw was asserted by Halse to be a SLAPP (24 May decision here), seemed somewhat tentative. Why does it matter then?
Leighton Associates regards this as significant because nowhere else in the publicised databases of the Employment Relations Authority (ERA) and Employment Court has the term SLAPP been used. Thirty out of fifty American States have anti-SLAPP legislation, but here in New Zealand the employment law community seems to be absurdly reluctant to acknowledge the existence of the phonomenon.
In fact, Leighton Associates would not exist but for a 2017 SLAPP that resulted in a lawyer being ordered by the ERA to pay $3,750 to each of her two former managers “Mr X” and “Mr Y” for criticising them. Hard-fought attempts to overturn the order subsequently resulted in a mid-six figure legal bill for the employer concerned.
Now a raft of amendments to the Employment Relations Act 2000 have been proposed and one is called the Privacy of Parties to Proceedings Amendment Bill, ostensibly to “encourage all those involved to participate without fear of publicity after the resolution of the matter”.
The proposal “provides that a successful party to proceedings in the Authority may apply for an order that their name or identifying particulars not be published, and requires the Authority to grant such an order unless publication would be justified in the public interest”.
The ERA routinely refers parties to mediation, and if the matter settles there, the ERA will usually publicise its brief determination to reflect that, usually anonymising both parties to randomised three letter pseudonyms, almost as if the ERA had never been involved. Mediations are already confidential as far as the law allows, and there are around fifteen times as many completed mediations as there are ERA proceedings.
For companies that are hiring, would a candidate who Googled up as having brought a personal grievance in the ERA make it to your shortlist? It may depend on the details and the candidate’s explanation of it. But a personal grievance, even if resolved in mediation, could be financially devastating for a small business.
And for job hunters, would an organisation with a disproportionately large number of personal grievance claims against it, or disparagement or noncompete proceedings against former employees, make you want to progress that job application?
Two things keep the number of ERA proceedings under 800 per year – the risk of having to pay some of the other party’s costs if unsuccessful, and the risk of reputational harm. Corrupt and/or aggressive conduct including prosecution of public sector whistleblowers will almost certainly increase if a party knows it can hide behind a three letter pseudonym, and this may further incentivise employers to offer secret commissions to employees’ legal representatives to “flip”, with the aim of securing a contractual obligation from the employee not to speak out, as I reported in 2021 (the “gagged” ex-employee spoke to us anyway). Malicious “prosecutions” would also increase for the same reason, and employees who bring claims that are unsucessful and have costs awarded against them may not even be able to disclose that there was a dispute in the first place (and may have lie about the reason for the resulting financial hardship, or risk further secret proceedings).
We have advised against anonymisation of parties in March 2021, giving several examples:
We appreciate that some will disagree because some parties who bring or defend proceedings in good faith would benefit from anonymisation. Returning to the Shaw matter, I wrote on a clumsy attempt to anonymise Shaw, Halse and Culturesafe on 23 December 2021. Shaw could not be silenced in mediation, about whatever it was the DHB wanted her silenced about, because the DHB never offered any money to settle her grievance. So it turned to ERA directions and, so far unsuccessfully, court orders. And that may concern Judge Corkill more than the inherent grubbiness of what we call a SLAPP.
(stock pic)