| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Christchurch |
| Reference No | [2012] NZERA Christchurch 160 |
| Determination date | 02 August 2012 |
| Member | D Appleton |
| Representation | H McKinnon ; B Pepperell |
| Parties | Stuart v Downer New Zealand Ltd |
| Summary | PRACTICE AND PROCEDURE – Admissibility of evidence - Applicant objected to respondent referring to evidence from witness statement prepared by applicant’s union delegate (“T”) during respondent’s disciplinary process – Authority found reasonable for applicant to expect T to treat applicant’s communication as confidential without seeking express assurance from T – Found applicant’s right to have confidentiality preserved not outweighed by public’s right to know content of evidence – Found T not permitted to give evidence relating to advice T gave applicant, information T received from applicant or T’s opinions as to merits of applicant’s case - Application granted - Authority ordered parts of T’s witness statement be struck out |
| Abstract | Applicant objected to respondent referring to evidence from witness statement prepared by applicant’s union delegate (“T”) during respondent’s disciplinary process. Evidence was statement made by T supporting respondent’s position (“evidence”). Applicant claimed evidence inadmissible as related to information applicant gave to T confidentially. Applicant claimed information applicant gave T and T’s opinions also confidential and therefore inadmissible. Applicant claimed had reasonable expectation communications with T would be confidential and had not waived that right. Applicant claimed risk respondent would give undue weight to evidence. Respondent claimed relationship between union delegate and member could be distinguished from lawyer and client relationship and union not required to give members unconditional support until member agreed information could be disclosed. Respondent claimed applicant should have made clear communications with T were confidential.;AUTHORITY FOUND –;PRACTICE AND PROCEDURE: Union not required to give conditional support to members but, once union agreed to provide support to member, union obliged to keep information from member private. Even if T brought information into public domain, public disclosure did not mean applicant’s right to confidentiality extinguished. Reasonable for applicant to expect T to treat applicant’s communication as confidential without seeking express assurance. Authority noted importance of public confidence that union would represent members without fear information disclosed made public. T’s evidence not essential for Authority to determine substantive matter. Applicant’s right to have confidentiality preserved not outweighed by public’s right to know content of evidence. T not permitted to give evidence relating to advice T gave applicant, information T received from applicant or T’s opinions as to merits of applicant’s case. Authority ordered parts of T’s witness statement be struck out. |
| Result | Application granted ; Orders made ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s157(2)(a);ERA s160(2);Evidence Act 2006 s69;Evidence Act 2006 s69(3) |
| Cases Cited | Lloyd v Museum of New Zealand Te Papa Tongarewa [2003] 2 ERNZ 685;Woolf v Kelston Girls' High School Board of Trustees unreported, Colgan J, 24 July 2000, AC 28B/00 |
| Number of Pages | 10 |
| PDF File Link: | 2012_NZERA_Christchurch_160.pdf [pdf 224 KB] |