Posted on: Feb 02, 2015

The barrier to challenging Authority determinations on procedure (section 179(5) of the Employment Relations Act 2000) continues to present problems. Notwithstanding the Act’s objective of allowing the Authority a clear run in its investigations unimpeded by challenges, there is no avoiding the fact that “procedural” is not synonymous with “minor” or “technical”.  Nowhere is this more stark than on occasions in which the Authority has declined to make a non-publication order (of names and/or details). As Judge Inglis noted recently in H v A Limited “[t]he horse will have well and truly bolted” in terms of the damage done to parties and also affected non-parties if such a decision goes unchallenged until the Authority has completely finished its investigation.

There is now a line of Employment Court cases, of which H v A Limited is the latest example, in which the Court has considered that, in assessing whether or not a matter is procedural, it is more important to have regard to the effect of the decision rather than the nature of the power being exercised. Judge Inglis, speaking on behalf of a full court, concluded:

A refusal to make a non-publication order does not fall within s 179(5), not because such an order directly impacts on a party’s rights or obligations but rather because the denial of such an order has an irreversible and substantive effect. It cannot have been Parliament’s intention that a litigant in the plaintiff’s shoes would have such an important issue (non-publication) determined at first and last instance by the Authority, with no recourse to the Court to review the Authority’s refusal.

The Judges of the Employment Court were divided on how high the threshold was for an applicant seeking a non-publication order. Did the applicant have to show “exceptional” circumstances to counter the all-important principle of open justice — which has been the approach of the general courts — or was the requirement less rigorous in the employment arena? A majority considered that the latter was the case. On the facts, the majority also considered that the requisite threshold had been reached.



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