Posted on: Oct 23, 2014

The question of whether privilege can be lifted with regard to communications made “without prejudice” has recently met with roughly the same response as the question of whether what happens in mediation can be disclosed.

The Court of Appeal refused to accept arguments that the position with “without prejudice” communications was somehow different in the employment law arena. The Employment Relations Act 2000 promoted the desirability of employer and employee first attempting to resolve problems themselves before any judicial intervention or even mediation. Communications made “without prejudice” between parties or their representatives were an important part of that picture. Public interest decreed that parties should be able to speak frankly, secure in the knowledge that their words would not thereafter be held against them in court.

In so finding, the Court of Appeal endorsed that of the Employment Court, in which Chief Judge Colgan had held that:

it was not necessary for a “dispute” (in the narrow sense of that word) to be in existence for “without prejudice” communications to attract absolute confidentiality.

It rejected an earlier Employment Court decision (Bayliss Sharr & Hansen v McDonald (2007) 8 NZELC 98,632) which had adopted the more prescriptive view.

The Court considered that the existence of “negotiations” or “difference” between the parties could be sufficient.

There simply needed to be a serious problem that required resolution and the problem would have to be one that could give rise to litigation, the result of which might be affected by an admission during negotiations.

In the case before it, one of a teacher who had admitted from the outset that his conduct amounted, technically at least, to serious misconduct, it would have been apparent prior to his representative talking to the school board’s representative that there was a serious problem for resolution. The board was bound to take disciplinary action and so the question really was only whether it would result in dismissal or a lesser sanction. Since a personal grievance was a real possibility if the former was chosen, there was indeed a problem that could give rise to litigation whose outcome might be affected by what was said “without prejudice” by the representatives.

Morgan v Whanganui College Board of Trustees (2014)

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.

Posted on: Oct 23, 2014

The likelihood for confusion to occur over when the 28 days for filing a challenge to an Employment Relations Authority determination expires has been much reduced by a recent decision of the Employment Court. In making its decision, the Court refused to follow the earlier decision of the Court in Vice-Chancellor of Lincoln University v Stewart.

Difficulties have arisen in situations in which the Authority has made its determination late in the year. Section 179(2) of the Employment Relations Act 2000 gives 28 days for filing a challenge to a determination. The Lincoln University case said that reg 74B(2) of the Employment Court Regulations, which excludes the period from 25 December to the close of 5 January in the calculation of times but is subject to “an express provision in any Act”, was inconsistent with the express provision in s 179(2) and therefore ineffective or ultra vires the power under which it was purportedly made.

Recognising the presumption of validity of subordinate legislation, the Employment Court has now given an opposing view. It considers that the regulation (along with reg 74A which allows things to be done upon the reopening of the Court registry where they are meant to be done but the registry is closed) simply gives effect to practical realities in the employment jurisdiction. A factor in the formation of this view was that, if the legally trained could get the dates wrong, how could the self-defended or the lay representative hope to get it right?

New Zealand Air Line Pilots’ Association v Airways Corporation of New Zealand Limited (2014)

Disclaimer

This article, and any information contained on our website is necessarily brief and general in nature, and should not be substituted for professional advice. You should always seek professional advice before taking any action in relation to the matters addressed.