Typically a person raising a personal grievance under the Act will request mediation as a first step to resolving their grievance. Through the mediation process the parties discuss the issues, consider options and are often able to reach agreement with the assistance of the mediator. These agreements are binding on the parties and enforceable. They allow the parties to resolve disputes relatively quickly themselves, rather than face an uncertain outcome at the Employment Relations Authority or in the Employment Court.
Section 148 of the Act provides that the parties must keep confidential: “….any statement, admission, or document created or made for the purposes of the mediation and any information that, for the purposes of the mediation, is disclosed orally in the course of the mediation.”
The confidentiality requirement is designed to ensure that the parties can engage in free and frank discussion of the issues and get to the heart of the matter without fear that their words will later be used against them.
In 2006, the Employment Court in Jesudhass v Just Hotel Ltd considered the extent of confidentiality afforded at mediation. Mr Jesudhass was suspended by his employer, Just Hotel Ltd. He raised a personal grievance and sought mediation. Mr Jesudhass alleged that during mediation his employer advised that they would dismiss him as soon as the mediation was finished. Mr Jesudhass raised a second personal grievance, that of unjustified dismissal, and sought to bring evidence of those alleged statements in support of his claim.
The Employment Court found that evidence of conduct during mediation could be used where those communications were not made in a genuine attempt to resolve an employment relationship problem.
Just Hotel Limited appealed this decision successfully. The Court of Appeal overturned the decision and found that the purpose of Section 148 was to allow parties to speak freely and frankly without the fear that their statements could be used against them. This could only occur if statements made at mediation remained confidential. The Court found that all documents prepared for the purposes of mediation and all statements made at mediation were confidential and that only in some limited circumstances, such as where public policy dictates (for example evidence of criminal conduct), could the statutory veil of confidentiality be lifted.
This decision is consistent with ensuring that mediation is promoted as the primary problem solving mechanism under the Employment Relations Act 2000.
For more information contact Brett Vautier at .(JavaScript must be enabled to view this email address)
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