We enter the debate on (and generally oppose) name suppression in employment cases – by Kim Leighton
Leading employment lawyer Susan Hornsby-Geluk has written “Should court give name suppression in employment cases?” for Stuff and we weigh in on this topic.
SHG’s comments in the context of open and transparent justice include:
“... a very high level of hardship would need to be demonstrated, going beyond the usual embarrassment and damage that may ordinarily result from being named in legal proceedings.”
“... issues related to private, family matters, [where] publication could create or increase disharmony in the family and undermine confidentiality, may result in safety concerns for beneficiaries and may also attract unfair negative publicity.”
“It is an unfortunate reality that... win or lose, employees who take their employers to the authority or court are tainted and find it more difficult to obtain further employment. Employers regularly conduct Google and employment law database searches of prospective employees...”
“This creates an unequal playing field... the likely damage of being named in a public court decision to an employee’s reputation... places employees under significant pressure to settle [in mediation], often cheaply.”
“It is also true that employers can be damaged by adverse court decisions...”
So far, we agree with all those points, but we respectfully disagree with SHG’s proposed solution, which is influenced by the Tenancy Tribunal where blacklisting issues are similar:
“From 11 February 2021, tenants and landlords can apply for their personal details to be removed from the Tenancy Tribumal records if they have been wholly or substantially successful in their claim.”
“It is time to revisit this issue in an employment context as the issues faced by tenants and employees in this respect are similar, and there is seldom a compelling public interest reason for knowing that an employee has been successful in a claim against their employer.”
We’ll explain by way of some examples why we believe it would not be a good idea to anonymise parties who are wholly or substantially successful in claiming or defending a Personal Grievance, or breaches of post-employment obligations.
1. Zelande v McCurdy (2019): Zelande (t/as Beaut Bees) were embroiled in a commercial dispute with the liquidator of its main customer TTM, in the High Court. As a result, Zelande had to make a beekeeper redundant. The beekeeper found similar work nearby, his restraint of trade unenforceable under the circumstances. The liquidator of TTM reached out to Mr McCurdy in an effort to resolve the commercial dispute. Mr McCurdy then provided sworn affidavit evidence to the liquidator which was appropriate, though apparently unfavourable to his former employer Zelande which was not particularly reputable. Zelande issued a Statement of Problem in the ERA, seeking a Compliance Order. Member Trotman was obliged to make a determination that the ERA had no jurisdiction over High Court proceedings, but instead issued a Compliance Order against Mr McCurdy forcing him to withdraw the affidavit and in doing so, interfered with High Court evidence.
We are unaware of any consequences Ms Trotman faced, although she did part ways with the ERA soon after, and is back in private practice. Through no fault of his own, Mr MrCurdy was left with an illegitimate Compliance Order and legal costs. Under the “successful party” criteria proposed, he would not have been eligible for name suppression, and a challenge to the Employment Court would have simply been too expensive and stressful.
2. ITE v ALA (2017): A Court of Appeal decision that named parties Geoffrey Brown v Tauranga City Council, with ITE v ALA and P v Q in the footnotes, when read in full, indicates a sinister effort by the ERA and Employment Court to stitch up a former council IT engineer in secret. And by stitch-up, we mean an initial $6,000 penalty plus an award of indemnity costs of around $160,000 that resulted in Mr Brown’s bankruptcy.
A non-publication order did make this well funded litigious attack by Tauranga City Council secret until, for reasons that are not exactly clear, the Court of Appeal chose to publish the parties’ real names. We have confirmed that Mr Brown does not wish to be anonymised.
An aggravating factor is that Mr Brown was sentenced to three weeks imprisonment for contempt, again under the name the Employment Court gave him, ITE.
3. VUW v Sawyer, with third party beneficiaries Mr X and Mr Y (2017): Senior law lecturer Caroline Sawyer was subjected to a terrifying period of harassment, property damage and threats to use faked documents to “destroy [her] entire career”, and her lawyer told her it would get worse if she did not go to mediation. This took place in July 2014 and Dr Sawyer’s lawyer met in secret with VUW’s lawyer, then told her she should sign an ambiguous document called a Record of Settlement or “they will mince you up”. The shocked mediator told Dr Sawyer the settlement agreement was “unenforceable”, possibly because the terms of the employment agreement did not provide her with a payout, and indicated that her emploment would not end on that date but she would need to work from a different site for the next few months. She believed both of them, and also believed that VUW wanted time to deal with the threats.
However, the harassment continued and VUW did not deal with it. Dr Sawyer resigned in February 2015, claiming constructive dismissal, and eventually took her case to the ERA. In December 2016 the ERA determination recorded that the Record of Settlement was valid to suppress any serious wrongdoing. Dr Sawyer challenged that determination to the Employment Court. In the process of preparing that challenge, Dr Sawyer reached out to former colleagues seeking evidence of the fake records shown to them and informing a senior colleague about the faking of records.
The university decided that the best form of defence was attack, so it issued a separate set of proceedings called a Strategic Lawsuit Against Public Participation (SLAPP), and managed to get ERA Member Anna Fitzgibbon to penalise her $8,500 for sending emails the university claimed disparaged her fomer managers, Mr X and Mr Y. The managers were each awarded $3,750 of the penalty, with $1,000 going to the Crown. That didn’t stop Dr Sawyer finding out that one of the managers had faked an “email relationship” with her for years.
You read that right – the two managers of the law faculty accessed taxpayer funds to pay external lawyers including a QC, to persuade an ERA Member to award them kickbacks, and suppress their names!
And the faked email relationship – why didn’t Dr Sawyer apply for disclosure? Actually she did, in early 2018 and that was refused. From there the Employment Court just added more layers to cover up the original serious wrongdoing, and even the Court of Appeal refused leave to appeal.
By the way, the law firm SBM Legal, the “B” standing for Kathryn Beck, then President of the Law Society, blogged on the VUW-Sawyer SLAPP, and we have called out that blog as “spiteful, cronyism-driven”. Whether of not there was any collusion and trading in influence is for the reader to decide, but we can advise that both Fitzgibbon and Beck have since become judges. Mary Scholtens QC who fronted the SLAPP against Dr Sawyer is known to aspire to become a judge herself. But her unsuccessful attempt to rally contacts to rehabilitate former Ministry of Transport CEO Martin Matthews who had ignored whistleblowers reporting fraud by Joanne Harrison, may have been a significant setback to her bid for the Bench.
Dr Sawyer had already been admitted to the Bar in late 2012 while still lecturing. Due to a malicious “intervention” the Law Society denied her the right to practice law on her own account until she could resolve the employment dispute, presumably in the ERA, facing a spectacular power imbalance from the outset. When a law faculty decides to make an academic an “un-person” for whatever reason, there’s not much that academic can do about it.
With that said, Dr Sawyer did go on to launch a Judicial Review recently as lawyer to another target of an ERA vendetta, around the ERA’s jurisdiction over third parties. Whichever way the Court of Appeal’s decision goes, systemic corruption in the employment law industry will be laid bare.
4. Davis Trading v Uelese (2020) This was a failed attempt by Davis Trading to enforce a restraint of trade clause against a warehouse supervisor. The noncompete clause had been inserted a couple of years earlier during a corporate merger, but no financial consideration to support that noncompete was paid.
Davis Trading damaged itself by bringing these proceedings and we have already blogged on the matter. That employer made its choice – it sought a “reward”, which would have been to deprive a competitor of a new hire. In doing so, it accepted the risk to reputation, finances, and staff morale.
Mr Uelese was not the one who chose litigation. He successfully defended Davis Trading’s claim and while his legal costs would have been significant, at least having the misfortune of being targeted with a meritless claim should not raise any red flags for any manager thinking of hiring him in future. We conclude that Mr Uelese would probably not have benefited from the name suppression suggested.
5. Sinton v Coatesville Motors (2020) As the winning party, Coatesville Motors would probably be happy to be anonymised as per SHG’s proposal, but having read the publicised ERA and Employment Court documents, we take a different view.
Mr Sinton is an automotive mechanic. For whatever reason, he was dismissed from Coatesville Motors just before Christmas 2018, after nine months service. He claimed unjustified dismissal in the ERA, and lost. As per normal, he was ordered to pay a contribution to the other side’s costs which came to $2,630.
The determination noted that Mr Sinton worked a lot of unpaid overtime, although that’s not actionable in itself. Coatesville had made a cross claim for an additional $2,066 being the full cost of a WOF training course, on the basis that his employment ended within a year of the course (after making an unauthorised deduction of that amount from his final pay). That was disallowed.
But it didn’t end there. Mr Sinton had been prepared to walk away at that point and for a qualified tradesman with portable skills who already had a new job, having to pay $2,630 is not such a big deal. But his no win no fee advocate pressured him to challenge the determination to the Employment Court.
Eventually Mr Sinton did make the decision to discontinue proceedings, and incurred additional costs in the process, although we don’t know how a costs order of $2,630 blew out to more than $26,000, including the WOF training fee that had previously been disallowed. This simply doesn’t pass the smell test. What happened in that room?
As previously noted, HR advisors do Google searches on candidates, likewise candidates are generally expected to research their prospective employer before the job interview, to make the interview process more effective. A Google search of Coatesville’s director currently brings up the Employment Court costs blowout, second from the top. We don’t believe it would be in the public interest to suppress information about prospective employers that might help candidades decide whether to progress or withdraw their application for a particular job.
Name suppression, actually non-publication orders, are common in matters where the ERA refers the parties to mediation, a settlement agreement is executed, and the parties advise the ERA of that agreement so that the matter can be closed. Usually the parties will request that the Member anonymise both parties to avoid reputational harm. This seems sensible.
Witnesses to ERA proceedings
Sometimes witnesses are anonymised, and ERA Members generally use their discretion appropriately. However, witnesses who would prefer to be unnamed are usually unrepresented and unable to articulate their wish to be anonymised in proceedings, and can be damaged as a result. After being named by Member Fitzgibbon, one senior manager had to quickly find an academic position in Australia because as a witness she was caught up in VUW’s proceedings against Dr Sawyer, and based on our understanding of those proceedings that witness she may have been leaned on extremely heavily. A proposal to anonymise parties, if not implemented right, could end up unfairly shifting the reputational burden onto witnesses to other peoples’ employment disputes.
The Streisand Effect
Sometimes a party will successfully apply for a non-publication order, but inadvertently draw attention whatever it was they were trying to hide. Even if the general public are largely unaware of the identities of ITE, ALA, Mr X and Mr Y, etc, industry insiders already know, or can find out easily enough. Mr X and Mr Y got $3,750 each, and those payouts were partially covered up by a non-publication order. With hindsight, should they have forgone their $3,750 windfalls to preserve their professional reputations? Almost certainly! Because they drew attention not only to the controversial payments, but the alleged document faking, intimidation and subsequent cover-ups as well.
Suppression can hide spectacular abuses, and we believe it would be desirable to have less name suppression, not more. More than 90% of Personal Grievance claims are resolved in mediation, and mediations are not publicised. Employees considering taking a claim to the ERA should assume that, win or lose, their name will be publicised and easily searchable by the HR advisors of prospective employers who might consider it a red flag.
Public debate on name suppression is important so we will be inviting Susan Hornsby-Geluk to respond in the form of a further blog, and the public to comment on our Facebook page.