Document destruction in the NZ Employment Court
Judge Corkill has ruled that the Employment Relations Authority (the Authority) should not have ordered the destruction of documents that Ms Hilford needed to support her personal grievance claim against Whangarei Boys High School (WBHS).
The personal grievance claim brought by the Learning Support Assistant is not yet resolved as this is “only” an interlocutory decision. But it’s an important one because employees who raise personal grievance claims need evidence, and some of that evidence is quite sensitive. The Authority and Employment Court often issue non-publication orders to ensure that any sensitive information is not used for any purpose other than advancing a claim against the other side and Judge Corkill refers to this in Paragraph 38 (b) and 50 (a):
38 (b) The steps taken by the Authority were excessive and could have been dealt with on the same basis as occurred in the Court – that is, by the making of a non-publication order, and/or redaction of identifying details.
50 (a) In both the Authority and the Court, there should now be a redaction of all students’ names in any documents that may be placed before either body. Similarly, there should be orders of non-publication of names and identifying details, as has been accepted.
The [excessive] steps taken by the Authority in relation to the sensitive documents Ms Hilford needed to advance her claim do not appear on the MBIE database, but it got ugly behind the scenes as Judge Corkill’s decision notes:
Paragraph 12: “…Mrs Hilford was directed to destroy three particular documents… to prevent any inadvertent breaches of security and privacy”.
Paragraph 14: “[Hilford’s advocate stated] the destruction order was an attempt to derail Mrs Hilford’s personal grievance against her former employer”.
Paragraph 16: “[The Authority] determined that a compliance order should be issued. Mrs Hilford was required to comply with the destruction order before 8 July 2022”.
Paragraph 24: “Because [confirmation of destruction of documents] was not given, WBHS brought an application for a sanction”.
Paragraph 46(b): “All relevant documents tendered by Mrs Hilford to the Authority were destroyed by her, including the three particular documents which the Authority had identified”.
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Paragraph 49: I consider that the effect of the orders made… had the potential to impact significantly on Mrs Hilford’s ability to present her case”.
Copies of the destroyed documents were held by the (Employment Relations) Authority and are therefore available to the parties as decided by Judge Corkill, subject to the following:
Paragraph 50(a): “In both the Authority and the Court, there should now be a redaction of all students’ names in any documents that may be placed before either body. Similarly, there should be orders of non-publication of names and identifying details, as has been accepted”.
Summary:
As we mentioned, the Authority had not publicised the determination ordering that documents be destroyed, or the compliance order. This appeared to be heading towards Contempt of Authority, and we believe that to be the case because WBHS applied for a sanction. It also looks like an overreaching attempt to confiscate a party’s valuable evidence and the fact that all this activity was not on the MBIE database is alarming because it suggests that contempt proceedings can happen in secret.
But as we see in Paragraph 50(a), the Court overturned it and Mrs Hilford can now use her evidence to pursue her personal grievance claim, with redactions and a non-publication order to protect students’ privacy.
You had me at "document destruction" . This does not instill much confidence in the Employment Court