A recent Employment Court ruling has highlighted the importance of open justice while hinting at potential changes ahead, say Duncan Cotterill Associate Caitlin Sargison and Solicitor Gene Park
Traditionally, the principle of open justice means that all details of decisions in the Employment Relations Authority and Employment Court are made public unless there’s a strong reason to keep them private. Parties need to apply for non-publication to obtain an order that certain information – such as their names and identifying information – should remain private.
In the case of MW v Spiga Ltd, the Court reviewed how non-publication orders are granted.
The Case in Brief: MW, an employee, had a dispute with their employer, Spiga Ltd. After mediation and a confidential settlement, MW claimed Spiga breached the agreement’s confidentiality and non-disparagement clauses. MW sought non-publication to keep their name private in the Authority’s determination. The Employment Relations Authority found Spiga in breach of those clauses but refused the non-publication order. MW challenged this in the Employment Court, which overturned the decision and granted the order, while also re-evaluating the approach to such applications.
Court’s Decision: The full Court agreed to grant the non-publication order but had differing views on the approach:
Majority View: Open justice remains the starting point. To get a non-publication order, one must show specific adverse consequences from publication. This is a high bar to meet. Personal sensitivity to the details of the claim or potential embarrassment are unlikely to be sufficient to meet this threshold. The sorts of adverse consequences which may justify a non-publication order may include serious negative impacts upon a person’s safety, health, reputation or future employment prospects, or the release of commercially sensitive information. Upon receipt of an application, the Court must assess whether those adverse consequences justify making an order for non-publication. Relevant factors include the circumstances of the case, the interests of the parties and the public interest (including the rights of media to report on cases).
Minority View (held by the Chief Judge): Suggested the starting point to non-publication should move away from open justice, in favour of the legislative framework, focusing on the central considerations of equity and good conscience. The Chief Judge considered the negative impact of publication of an applicant’s name on their future job prospects as becoming increasingly relevant, with the progression of AI and the prevalence of social media contributing to this information being more readily available than ever before. She also noted concerns that the threat of publication may be used to incentivise settling employment disputes at mediation, where settlements may be more weighted in favour of the party with greater bargaining strength.
Based on these considerations, the Chief Judge endorsed the Court establishing a lower threshold to grant non-publication orders, so that parties would be able to more readily obtain those orders, when sought.
Key Takeaways for Employers:
- The ruling doesn’t change the current approach to non-publication orders but signals possible changes on the horizon that employers should keep a close eye on.
- Both views acknowledge the increasing impact of publicising an applicant’s name on their future job prospects in the age of social media and AI. As these developments continue, this issue may be given greater consideration by the Authority/Court.
- The threat of publication, and more specifically potential reputational damage from publication, may begin to diminish in its power to encourage claimants to settle privately and confidentially.
This decision underscores the evolving landscape of non-publication orders, reflecting changes in technology and societal norms. As these factors are given more weight, the balance between open justice and privacy may shift, impacting some of the drivers for how employment disputes are resolved.
