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PLEASE NOTE: This article was published on the date listed below and may now contain information that has since been updated or changed. We have retained this article as it may still contain helpful comments. However, we advise you to make an appointment to see us for the most up to date information on this topic.

December 2007

Suppression in Employment Cases

Employment litigation is often the subject of media interest. Generally, employment disputes are no different to any other type of litigation with the principle of open justice applying much in the same way that it applies to other civil proceedings, and for much the same reasons, namely to maintain public confidence in the judicial system.

However, there are exceptions. In particular, the Second Schedule to the Employment Relations Act 2000 expressly confers on the Employment Relations Authority the power to order that any evidence given or a name of any party or witness to any proceedings not be published on such conditions as the Authority thinks fit. Examples of situations in which it has been found that there are good and sufficient reasons for non-publication include:

  • Where the information suppressed relates to third parties not involved in the proceedings.
  • Where the parties are in an ongoing employment relationship.
  • Where the information relates to commercially sensitive financial information.

The issue was recently considered by the Supreme Court in White v Auckland District Health Board in which the Supreme Court declined to hear an appeal against a judgment of the Employment Court for an order refusing to make an order for permanent suppression of name.

Facts

Dr White was a senior doctor employed by the Auckland District Health Board for many years and had attained a high professional standing. There had not been any disciplinary issues throughout the many years of employment.

Briefly, the events that lead to the proceedings were that:

  • Dr White had taken a photograph (using his work cellphone) of his genitalia and attempted to email it to a female acquaintance using his work computer. Because he had mistyped the email address of the intended recipient, the email “bounced back” and he then deleted it.
  • A professional colleague had sent Dr White an unsolicited pornographic email attachment. He initially attempted to delete it but subsequently forwarded it to another ADHB employee, again using the work computer.
    Ultimately, a disciplinary investigation was commenced into these matters.

Dr White immediately acknowledged that what he had done was wrong and expressed his regret. However, at the end of the disciplinary process, Dr White was dismissed on the basis of the two emails.

Reinstatement

Following the dismissal, Dr White immediately applied to the Employment Relations Authority for interim reinstatement, which was granted with Dr White returning to work on a limited basis from 12 May 2005. The ADHB appealed unsuccessfully against the interim reinstatement order.

Other Remedies

Following the order for interim reinstatement, Dr White’s personal grievance claim was removed to the Employment Court, which dealt with the substantive issue. Ultimately, the Employment Court concluded that Dr White’s dismissal was unjustified and ordered permanent reinstatement.

However, the Employment Court also held that he had contributed significantly to his own demise, to the point where the Court declined to order any of the remedies claimed (other than permanent reinstatement).

Furthermore, the Employment Court refused to make a permanent order suppressing Dr White’s name (interim orders for name supression having previously been made).

The outcome of the above is that although Dr White was found to have been unjustifiably dismissed and reinstated, he was not awarded any monetary remedies and his identity became publicly known.

Both parties unsuccessfully sought leave to appeal to the Court of Appeal (Dr White against the refusal to order permanent suppression of name and the ADHB against the substantive findings). Dr White then sought leave to appeal directly to the Supreme Court, which was also declined.

Summary

Whilst the case is perhaps more notable for its application of a “fair and reasonable” employer test, it also provides a useful illustration of the need to bear in mind practical considerations when dealing with employment disputes. Although Dr White was ultimately successful in obtaining first interim and then permanent reinstatement, it no doubt came at a heavy cost to him, both financially and in terms of his reputation, particularly in view of the publicity that the case attracted and the fact that he failed to obtain permanent name suppression.

The case also serves as a useful illustration of the point that although a dismissal may be found to have been unjustified, in appropriate cases there will be a reduction in remedies made where the employee themselves contributed to the situation, with the result that the employee is sometimes denied any monetary remedies at all.

As the case demonstrates, in employment disputes there are often practical considerations that need to be taken into account by both employers and employees, as well as the legal issues involved. If practical considerations are overlooked it can result in parties pursuing legal remedies in circumstances where they might have been better served by a more practical solution, such as mediation (which unlike proceedings in the Employment Court will be confidential). We can advise both employees and employers in relation to both legal and practical issues associated with employment disputes.