| Restrictions | OK |
|---|---|
| Jurisdiction | Employment Relations Authority - Wellington |
| Reference No | WA 41/07 |
| Hearing date | 26 Jan 2007 |
| Determination date | 15 March 2007 |
| Member | G J Wood |
| Representation | A Millar ; P Drummond |
| Location | Wellington |
| Parties | Lauchlan v Keegan Contractors Ltd |
| Summary | PRACTICE AND PROCEDURE – Admissibility of evidence – Respondent requested applicant attend mediation – Parties attended mediation – Applicant made allegations about what respondent’s managing director (“MD”) said at mediation – If allegations of what MD said true, applicant’s later evidence (about advice he sought of representative) would not have occurred – Found, as matter of fact, claims about what happened at mediation did not occur - Preferred MD’s evidence that said nothing at mediation constituting grounds for breaching confidentiality – Approach consistent with Jesudhass v Just Hotel Ltd (cited below) – Applicant could establish other matters from MD’s behaviour leading up to mediation, fact of mediation, and events after mediation – While finding resolved issue Authority addressed whether what occurred at mediation not for purposes of mediation and/or for purposes of settling litigation or potential litigation – Initiative to formally address employment issues through mediation unusual - Did not mean initiative unacceptable per se or protections of mediation disregarded – Had events taken place outside mediation “without prejudice” privilege could not have applied – Authority found Court’s phrase in Jesudhass v Just Hotel Ltd “for the purposes of mediation” reflected common law requirement communications genuinely be for purpose of settling litigation or potential litigation before confidentiality applied – Authority found Court not holding had to be litigation or potential litigation before confidentiality could apply - Statutory protection akin to common law – However, prerequisites not same – Considered Jesudhass v Just Hotel Ltd concluded parties engaging in mediation to deal with issue in employment relationship were acting for purposes of mediation - All actions taken for purposes of mediation – Certain evidence inadmissible - Ordered documents be altered |
| Result | Question answered in favour of respondent ; Orders accordingly ; Costs reserved |
| Main Category | Practice & Procedure |
| Statutes | ERA s143(b), ERA s143(c), ERA s143(d), |
| Cases Cited | Bayliss Sharr and Hansen v McDonald unreported, Couch J, 7 December 2006, CC 12/06;Jesudhass v Just Hotel Ltd [2006] ERNZ 173 |
| Number of Pages | 6 |
| PDF File Link: | wa 41_07.pdf [pdf 26 KB] |